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WILLIAM KUMAH ET AL. v. LEO G.

BROWN ET AL.

(AC 36716)

Beach, Mullins and Bishop, Js.

Argued April 14—officially released October 27, 2015

(Appeal from Superior Court, judicial district of

Fairfield, Radcliffe, J.)

Nathaniel E. Baber, for the appellants (plaintiffs).

Brendon P. Levesque, with whom were Kenneth J.

Bartschi and, on the brief, Karen L. Dowd and Aamina

Ahmad, for the appellee (defendant town of

Greenwich).
Opinion

BEACH, J. The plaintiffs, William Kumah and Keziah

Kumah, appeal from the judgment of the trial court

rendered following the denial of their motion to set

aside the verdict in favor of the defendant town of

Greenwich.1 The plaintiffs claim on appeal that the trial

court abused its discretion when it denied their motion

to set aside the verdict because the jury’s answers to

the special interrogatories in the verdict form were

inconsistent. We affirm the judgment of the trial court.

The jury reasonably could have found the following

facts. At approximately 1:50 a.m. on September 3, 2006,

a tractor trailer rolled over on Interstate 95. The tractor

trailer leaked diesel fuel and occupied the right and

center lanes of the highway, as well as part of the right

shoulder. Members of the defendant’s volunteer fire

department responded to the scene and established a

temporary traffic control zone. The volunteer firefighters stationed a fire truck, with flashing lights, on the

right shoulder of the highway; later, they moved it so

that it was positioned diagonally across the middle and

right travel lanes, as well as a portion of the right-hand

shoulder. The firefighters placed cones as warnings to

approaching traffic. At approximately 4:10 a.m., the

vehicle operated by William Kumah collided with the

lit firetruck. He was seriously injured. The plaintiffs

then filed the present action.

Willam Kumah alleged negligence and nuisance in

separate counts, and his wife, Keziah Kumah, alleged

loss of consortium.2

In its instructions to the jury, the

court summarized the plaintiffs’ allegations of negligence: ‘‘One, that the [defendant] positioned the traffic

cones in a manner that violated recognized and prescribed safety standards, rules, procedures, and/or regulations. Second, that the [defendant] failed to establish

an advanced warning area to protect oncoming motorists. And third, that the [defendant] failed to post signs

or otherwise provide advanced warning to oncoming

motorists after placing the fire truck on the travel portion of the highway.’’3 The court also instructed the jury

on the defenses of comparative negligence and qualified

immunity. As to the nuisance count, the court instructed

the jury that the plaintiffs alleged that ‘‘through the

positive acts of its agents and employees, [the defendant] created and maintained a nuisance on the highway

on September 3, 2006.’’

The jury returned a verdict in the form of answers

to interrogatories. It concluded, as to the negligence

count, that the defendant had been negligent, but that

recovery was barred by the operation of qualified immunity. Specifically, as to the claim of negligence, the jury

found that the defendant had been negligent ‘‘in one or

more of the ways specified in the complaint,’’ but that

‘‘all of the negligence . . . involved the exercise of
judgment or discretion, and therefore was not ‘ministerial’ . . . .’’ As to the nuisance count, the jury concluded that the placement of the fire truck did not

constitute a public nuisance and, thus, found in favor

of the defendant. The jury found that the defendant had

‘‘created a condition on the highway which had a natural

tendency to create danger and inflict injury to persons

and/or property,’’ and that the danger was a continuing

one. The jury did not find, however, that the use of the

land by the defendant was ‘‘unreasonable, given the

circumstances.’’ The plaintiffs moved to set aside the

verdict on the ground that the answers to the interrogatories were inconsistent, the trial court denied the

motion, and rendered judgment in favor of the defendant. This appeal followed.

The plaintiffs claim that the court erred in failing to

set aside the jury’s verdict because the jury’s finding

that the defendant was negligent was inconsistent with

its express finding that the defendant’s use of the land

was not unreasonable. The plaintiffs argue that the

same allegations underlay both the negligence and nuisance claims, and that the jury could not have found that

the defendant acted both reasonably and unreasonably

simultaneously with respect to the same conduct.4 We

conclude that the interrogatories can be harmonized.

‘‘The standard of review governing our review of a

trial court’s denial of a motion to set aside the verdict

is well settled. The trial court possesses inherent power

to set aside a jury verdict which, in the court’s opinion,

is against the law or the evidence. . . . [The trial court]

should not set aside a verdict where it is apparent that

there was some evidence upon which the jury might

reasonably reach [its] conclusion, and should notrefuse

to set it aside where the manifest injustice of the verdict

is so plain and palpable as clearly to denote that some

mistake was made by the jury in the application of legal

principles . . . . Ultimately, [t]he 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. . . .

‘‘The role of an appellate court where an appellant

seeks a judgment contrary to a general verdict on the

basis ofthe jury’s allegedly inconsistent answers to such

interrogatories is extremely limited. . . . To justify the

entry of a judgment contrary to a general verdict upon

the basis of answers to interrogatories, those answers

must be such in themselves as conclusively to show that

as [a] matter of law judgment could only be rendered for

the party against whom the general verdict was found;

they must negative every reasonable hypothesis as to

the situation provable under the issues made by the

pleadings; and in determining that, the court may consider only the issues framed by the pleadings, the general verdict and the interrogatories, with the answers

made to them, without resort to the evidence offered
at the trial. . . . When a claim is made that the jury’s

answers to interrogatories in returning a verdict are

inconsistent, the court has the duty to attempt to harmonize the answers.’’ (Citation omitted; emphasis

added; footnote omitted; internal quotation marks omitted.) Froom Development Corp. v. Developers Realty,

Inc., 114 Conn. App. 618, 625–27, 972 A.2d 239, cert.

denied, 293 Conn. 922, 980 A.2d 909 (2009).

We disagree with the plaintiffs’ argument that the

answers to the interrogatories are fatally inconsistent.

It does not follow that simply because the jury found,

as to one or more of the alleged acts or omissions,

that the defendant had breached its duty to act as an

ordinarily prudent person, itthen necessarily had to find

that the defendant’s use of the land was unreasonable in

the circumstances.

‘‘The essential elements of a cause of action in negligence are well established: duty; breach of that duty;

causation; and actual injury.’’ (Internal quotation marks

omitted.) Mazurek v. Great American Ins. Co., 284

Conn. 16, 29, 930 A.2d 682 (2007). ‘‘A defendant’s duty

and breach of duty is measured by a reasonable care

standard, which is the care [that] a reasonably prudent

person would use under the circumstances.’’ (Internal

quotation marks omitted.) Rawls v. Progressive Northern Ins. Co., 310 Conn. 768, 776, 83 A.3d 576 (2014).

With respect to nuisance, ‘‘a plaintiff must prove four

elements to succeed in a nuisance cause of action: (1)

the condition complained of had a natural tendency to

create danger and inflict injury [on] person or property;

(2) the danger created was a continuing one; (3) the

use of the land was unreasonable or unlawful; [and]

(4) the existence of the nuisance was the proximate

cause of the plaintiffs’ injuries and damages. . . . In

addition, when the alleged tortfeasor is a municipality,

our common law requires that the plaintiff also prove

that the defendants, by some positive act, created the

condition constituting the nuisance.’’ (Citation omitted;

internal quotation marks omitted.) Picco v. Voluntown,

295 Conn. 141, 146, 989 A.2d 593 (2010). ‘‘Whether an

interference is unreasonable in the public nuisance context depends . . . on (a) [w]hether the conduct

involves a significant interference with the public

health, the public safety, the public peace, the public

comfort or the public convenience, or (b) whether the

conduct is proscribed by [law] . . . . The rights common to the general public can include, but certainly are

not limited to, such things as the right to use a public

park, highway,river or lake.’’ (Citation omitted; internal

quotation marks omitted.) Shukis v. Board of Education, 122 Conn. App. 555, 587, 1 A.3d 137 (2010).

The standards of reasonableness regarding negligence and nuisance are different; the trial court’s apt

instructions to the jury reflected the difference.5

Although the allegations regarding the conduct underly-
ing both the negligence and nuisance counts were similar; see footnote 3 of this opinion; the jury reasonably

could have found the defendant was negligent as to the

conduct giving rise to one or more of the allegations

of negligence, while not finding that nuisance had been

proven. There were two separate and distinct causes

of action implicating different elements and standards.

The jury could have found, for example, that a reasonably prudent town would have added more traffic cones

or placed them differently, but that it was not unreasonable overall, given the emergency, for the town to interfere with the public’s access to the highway generally

by placing the fire truck in front of the disabled tractor

trailer and generally guarding the scene.6 The interrogatories were not necessarily inconsistent; therefore, the

court did not abuse its discretion in denying the plaintiffs’ motion to set aside the verdict.7

The judgment is affirmed.

In this opinion the other judges concurred.

1 The plaintiffs sued several entities. The only defendant that remained

in the action at the time of trial, however, was the town of Greenwich. For

simplicity, we refer to the town of Greenwich as the defendant.

2 This court and our Supreme Court previously have considered prior

appeals in this case. See Kumah v. Brown, 127 Conn. App. 254, 14 A.3d 1012

(2011), aff’d, 307 Conn. 620, 58 A.3d 247 (2013). The trial court previously had

struck the counts sounding in negligence and in nuisance, and this court

reversed the judgment as to both counts. Kumah v. Brown, supra, 127 Conn.

App. 255, 262, 263–64. We held that the negligence count, which included

allegations on which a breach of a ministerial duty could be found, withstood

a motion to strike even if qualified immunity was raised as a special defense.

Id., 261–62. We also held that recovery in nuisance was not barred by our

prior holding in Himmelstein v. Windsor, 116 Conn. App. 28, 40, 974 A.2d

820 (2009), aff’d, 304 Conn. 298, 39 A.3d 1065 (2012), and that the nuisance

count stated a cognizable cause of action. See Kumah v. Brown, supra, 127

Conn. App. 263–64. After this court’s judgment was affirmed by our Supreme

Court, the case was, accordingly, remanded for further proceedings as to

both counts.

3 The plaintiffs’ factual allegations in the negligence and nuisance counts

were similar. In the operative complaint, the plaintiffs alleged in both counts

that the defendant positioned the fire truck in such a way that: its lights

were not sufficiently visible; it caused the plaintiff’s vehicle to rotate and

to strike a barrier after the initial collision; it created a danger to oncoming

motorists; it violated safety standards; and it did not secure the accident

scene. The plaintiffs alleged that the defendant had not placed traffic cones:

at an adequate distance; in a way that warned motorists; in a way that

protected oncoming motorists; or in a way that followed safety standards,

rules, and procedures. The plaintiffs also alleged that the defendant failed

to provide adequate lighting, violated safety standards and procedures, and

failed to establish an advance warning area.

4 The defendant argues that the jury reasonably could have found the

defendant negligent as to one or more of the alleged omissions, but also,

and not inconsistently, that its positive act of placing the fire truck in the

road was not unreasonable in the circumstances. The plaintiffs argue that

the requirement, in order to recover damages, that the creation of a nuisance

has to be by means of a positive act, has no bearing on the question of whether

the defendant’s use of the land was reasonable. We need not consider this

specific argument because we conclude that the answers to the interrogatories can be harmonized for other reasons.

5 Regarding reasonableness in the negligence count, the court instructed

the jury: ‘‘[N]egligence is the failure to use or exercise due care or reasonable

care as it is sometimes called. Reasonable care is that amount of care which

a reasonably prudent person would use or exercise under the same or

similar circumstances then and there existing. Negligence is the doing of

something which a reasonably prudent person would not do under the

same or similar circumstances, or on the other hand, the failure to do
what a reasonably prudent person would have done given the same or

similar circumstances. All of the circumstances must be considered, and

in considering circumstances of slight danger, a slight amount of care would

be sufficient to constitute reasonable care, while in circumstances of great

danger, accordingly, a great amount of care would be required to constitute

reasonable care. But the ultimate test of the duty to use reasonable care is

to be found in the foreseeability that harm may result if that care is not

exercised.’’ (Emphasis added.)

Regarding reasonableness in the context of the nuisance count, the court

gave the jury the following instruction: ‘‘[T]he plaintiffs must prove that the

use of the land, in this case, the westbound or southbound lane of the travel

portion of Interstate 95 on the Mianus River Bridge was unreasonable. In

making a determination concerning the reasonableness of the use of the

highway, all of the surrounding factors must be considered, including the

situation facing the responders upon their arrival on the scene, the weather

conditions, and the conditions on the road, the volume of traffic, and other

factors bearing upon reasonableness.’’

6 Reasonableness in the nuisance context weighs the utility of the interference with the public right against the degree or severity of the interference.

See 4 Restatement (Second), Torts § 826, p.119 (1979) (‘‘[a]n intentional

invasion of another’s interest in the use and enjoyment of land is unreasonable if . . . the gravity of the harm outweighs the utility of the actor’s

conduct . . . .’’); see also 58 Am. Jur. 2d 632–33, Nuisances § 79 (2012)

(‘‘the court must balance the gravity of the harm to the plaintiff against

the utility of the defendant’s conduct both to the defendant and to the

community’’). Such considerations are germane to deciding whether an

interference with public safety is significant. See Shukis v. Board of Education, supra, 122 Conn. App. 587.

The jury in this case was properly instructed to consider all of the circumstances surrounding the alleged interference with the public use of the

highway, including, as the trial court instructed the jury, ‘‘the situation facing

the responders.’’ See, e.g., Prifty v. Waterbury, 133 Conn. 654, 658, 54 A.2d

260 (1947); Balaas v. Hartford, 126 Conn. 510, 514, 12 A.2d 765 (1940). The

jury may well have decided that the interference imposed by the defendant

was minimal, in comparison to the interference caused by the initial accident,

and that the social utility of guarding the scene with, inter alia, flashing

lights was great, even though a detail such as the placement of a cone may

not have been prudently executed. We further note that we are not presented

in this case with issues such as whether the allegations presented a continuing interference or whether the actions of the defendant, as opposed to

the driver, actually created an interference with public safety at all. Cf.

Chirieleison v. Lucas, 144 Conn. App. 430, 443, 444–45, 72 A.3d 1218 (2013).

7 The plaintiffs also claim that the evidence was sufficient to support their

claim of nuisance. Because we conclude that the answers to the interrogatories were not necessarily inconsistent, and the jury did not find for the

plaintiffs on the nuisance count, we need not address the question of whether

evidence was sufficient. No issue as to the sufficiency of the evidence is

before us.