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R.I. POOLS, INC. v. PARAMOUNT

CONCRETE, INC.

(AC 34363)

Lavine, Sheldon and Keller, Js.

Argued October 24, 2013—officially released May 6, 2014

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Complex Litigation Docket,

Blawie, J.)

Michael S. Taylor, for the appellant (defendant).

Raymond J. Plouffe, Jr., for the appellee (plaintiff).
Opinion

KELLER, J. The plaintiff, R.I. Pools, Inc., brought

this action under the Connecticut Product Liability Act

(act), General Statutes § 52-572m et seq., seeking damages against the defendant, Paramount Concrete, Inc.,

for having sold it an allegedly defective product that it

used in its construction of several luxury swimming

pools for homeowners in Fairfield County.1 The defendant appeals from the judgment of the trial court, rendered following a jury trial, in favor of the plaintiff. The

defendant claims that the court improperly (1) denied

its motion to set aside the verdict, and (2) awarded the

plaintiff punitive damages. We agree with the defendant

that the jury’s award of compensatory damages and the

court’s award of punitive damages must be reversed.

Accordingly, we remand the matter to the trial court

for a hearing in damages on the plaintiff’s claim for

compensatory damages, and a separate hearing to

determine the plaintiff’s award of punitive damages.2

By means of its amended complaint dated February

14, 2011, the plaintiff alleged that it purchased a concrete product, Shotcrete, from the defendant. The plaintiff installed the Shotcrete in several pools and spas

that it built for homeowners in the course of its pool

and spa construction business. The plaintiff alleged that

the Shotcrete ‘‘has thus far cracked in at least seventeen

pools,’’ causing property damage. The plaintiff,

expressly invoking the act, alleged that the defendant

was liable for all damages and losses it had sustained

as a result of the defective Shotcrete, in that (1) ‘‘the

Shotcrete should have been made with concrete sand

only, not masonry sand or a combination of masonry

sand and concrete sand’’; (2) ‘‘the Shotcrete was

improperly mixed’’; (3) ‘‘the Shotcrete was made, distributed and/or delivered by machines and equipment

that were not properly maintained, repaired and/or

equipped’’; (4) ‘‘improper amounts and/or grade of

ingredients were utilized’’; and (5) ‘‘[the defendant]

failed to warn or advise [the plaintiff] of the foregoing

and of the potential for danger and damage it posed to

the pools and spas being constructed by [the plaintiff],

as well as the potential for damages and losses to the

surrounding real and personal property in the vicinity

of these pools.’’

The plaintiff alleged that, ‘‘even though [the defendant] knew or should have known that the Shotcrete

it was selling was not in compliance with industry standards and deviated from product design requirements

and recommendations, [the defendant] made representations to the contrary, thereby purposefully misleading

its customers, including [the plaintiff], despite knowing

that such customers were relying upon theirrepresentations and the purported quality and fitness of their product in building substantial construction projects,

including pools, spas and other structures . . . .’’ Fur-
thermore, the plaintiff alleged that ‘‘[the defendant]

operated a concrete/Shotcrete plant without personnel

that had sufficient expertise and/or training in the

proper mixture and/or amounts and/or grade of ingredients for Shotcrete, and/or proper delivery for Shotcrete

when it knew or should have known that the operation

of a concrete/Shotcrete plant without such sufficient

expertise created a high probability of causing substantial injury to product users, and consumers, including

the plaintiff, and theirrespective property.’’ On the basis

of these allegations, as well as the allegations previously

set forth, the plaintiff claimed that the defendant’s

course of conduct ‘‘was in reckless disregard for the

safety of product users, consumers and the plaintiff and

their respective property which were injured by the

product . . . .’’

The plaintiff alleged that, as a result ofthe defendant’s

defective product as well as its ‘‘egregious conduct,’’ it

had sustained substantial financial losses and damages,

‘‘including the costs of repair and/or replacement of

seventeen pools, spas, landscaping, and hardscaping,

and the potential for additional losses and damages if

cracking and other related failures occur in some or

all of the other pools and spas it built with Shotcrete

supplied by the defendant.’’ The defendant denied having sold the plaintiff a defective product and, by means

of special defense, alleged that any losses sustained by

the plaintiff had resulted from ‘‘its misuse, alteration

and/or modification of the product at issue . . . .’’3

At trial, the plaintiff presented evidence of varying

degrees of crack damage in nineteen completed swimming pools it had built using Shotcrete manufactured

by and purchased from its subcontractor, the defendant.4 The plaintiff presented evidence that the cracks

found in all of the pools at issue had been caused by

Shotcrete that had not been mixed to a proper consistency, which, in turn, had led to excessive shrinking in

completed pools. The defendant, denying that it had

sold defective Shotcrete, attempted to prove that the

cracking at issue had resulted from the defective construction practices of the plaintiff.

During closing argument, the plaintiff’s attorney

stated that the plaintiff wanted to ‘‘repair’’ and ‘‘rebuild’’

the pools at issue. During argument, he referred to a

chart that was displayed as a visual aid that, among

other things, described the location of each of the nineteen pools at issue as well as the amount of damages,

whether past, present or both, that had been incurred

or would be incurred by the plaintiff with regard to

each pool. Referring to damage amounts specified for

each of the nineteen pools at issue, the plaintiff’s attorney referred to the evidence and explained the method

by which his client had calculated its damages, and

argued that the total amount of past and future damages

supported by the evidence was $2,760,208.5 This
amount, which included lost profits to the plaintiff as

well as miscellaneous damages listed in the amount of

$7680.64, was labeled as the ‘‘total’’ on the chart.

The plaintiff’s attorney, however, cautioned that

because the plaintiff was not seeking lost profits in

its complaint, this ‘‘total’’ amount should be adjusted

appropriately. Thus, the plaintiff’s attorney argued that

the amount of damages proven and sought by the plaintiff, minus lost profits, was $2,365,562. One of the issues

submitted to the jury was whether the plaintiff was

entitled to an award of punitive damages pursuant to

the act and, during argument, the plaintiff’s attorney

argued in support of such an award.

During its charge, the court stated, in relevant part,

that the jury was to consider evidence concerning the

nineteen pools about which it had heard evidence and

to complete the jury verdict forms, including interrogatories, provided to it. The court stated that part of the

jury’s obligation would be to provide a ‘‘breakdown of

[damages related to] each of the nineteen pools about

which [it] heard evidence.’’ The court instructed the

jury that, in the event that it awarded the plaintiff damages, the amount of damages reflected in its completed

interrogatories should be the same figure reflected on

the plaintiff’s verdict form. Following deliberations, the

jury returned a verdict in favor of the plaintiff in the

amount of $2,760,207.90, and found that the plaintiff

was entitled to punitive damages.

By means of jury interrogatories, the jury, in the context of awarding a plaintiff’s verdict, was asked to specify both the ‘‘total damages’’ and the defendant’s

percentage of fault for each of the nineteen pools for

which damages were sought by the plaintiff. The completed interrogatories reflect that, with respect to each

of the nineteen pools at issue, the jury found that the

defendant was 100 percent at fault and the plaintiff was

entitled to recover damages in the identical amount of

$145,274.10. The completed interrogatory forms reflect

that the jury did not award any ‘‘miscellaneous damages,’’ as had been requested by the plaintiff. The total

damages were specified both in the interrogatories and

on the plaintiff’s verdict form as $2,760,207.90. After

the verdict was announced, the jury was polled and

each juror expressed his or her agreement with the

verdict. The court did not conduct any further inquiry

of the jury concerning its verdict.

Subsequently, the defendant filed a motion to set

aside the verdict. Following a hearing, the court denied

the motion. Later, the court awarded punitive damages

in the amount of attorney’s fees incurred by the plaintiff,

less costs.6 The court denied the defendant’s motion to

reargue this decision. This appeal followed. Additional

facts will be set forth as necessary.

I
First, on a variety of grounds, the defendant challenges the court’s denial of its motion to set aside the

verdict. Before addressing the defendant’s arguments,

we set forth our standard of review. ‘‘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 [that], in the court’s opinion, is against the law

or the evidence. . . . [The trial court] should not set

aside a verdict [when] it is apparent that there was

some evidence [on] which the jury might reasonably

reach [its] conclusion, and should not refuse to set it

aside [when] 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.’’ (Internal quotation marks omitted.) Weyant

v. Kristy, 126 Conn. App. 180, 183, 10 A.3d 119 (2011).

A

The first part of the defendant’s claim relates to the

jury’s finding as to liability. The defendant argues, as

it did before the trial court in the context of its motion

to set aside the verdict, that the award cannot stand

because the plaintiff failed to present evidence that it

proximately caused damage to four of the nineteen

pools at issue.7 The gist of the argument is that the

testimony of the plaintiff’s expert witness with regard

to causation, licensed structural engineer Gerard Feldman, reflects that, in connection with four of the pools

at issue, he did not conduct any firsthand evaluation

of their condition and, in rendering his expert opinion,

did not rely on evidence of a type reasonably relied

on by experts in his field. Thus, the defendant argues,

Feldman’s opinion that defective Shotcrete caused the

cracking in these pools cannot support the verdict with

regard to these four pools.

‘‘[I]n order to recover under the doctrine of strict

liability in tort the plaintiff must prove that: (1) the

defendant was engaged in the business of selling the

product; (2) the product was in a defective condition

unreasonably dangerous to the consumer or user; (3)

the defect caused the injury for which compensation

was sought; (4) the defect existed at the time of the

sale; and (5) the product was expected to and did reach

the consumer without substantial change in condition.’’

(Internal quotation marks omitted.) Potter v. Chicago

Pneumatic Tool Co., 241 Conn. 199, 214, 694 A.2d 1319

(1997). It is not in dispute that the plaintiff was bound

to present expert opinion evidence in the present case

with regard to causation.

‘‘The mere fact that a witness has been qualified as

an expert in a particular field does not itself give the
expert information needed to state an opinion relevant

to the case. There remain two additional elements

before that opinion may be rendered . . . [a] knowledge of the facts of the case, to which the expert’s

training and experience may then be applied [and] . . .

[t]he perceived reliability ortrustworthiness of the principles and theories from the field of expertise which

the expert employs to render the opinion . . . .

‘‘The opinions of experts must be based upon facts

which have been proved, assumed, or observed, and

which are sufficient to form a basis for an intelligent

opinion. . . . Opinion evidence should be accompanied by a statement of the facts on which it is based,

and as a general rule, an expert must state facts from

which the jury may draw [its] conclusions. Conversely,

a witness qualified as an expert may not only testify as

to the conclusions based upon his skill and knowledge,

but also as to the facts from which such conclusions

are drawn. . . . [W]here the factual foundation for an

expert opinion is not fully disclosed, it cannot be

assailed upon appeal if accepted by the jury as sufficient

in weight and credibility to support the verdict. . . .

‘‘The fact that an expert opinion is drawn from

sources not in themselves admissible does not render

the opinion inadmissible, provided the sources are fairly

reliable and the witness has sufficient experience to

evaluate the information. . . . An expert may base his

or her opinion on facts or data not in evidence, provided

they are of a type reasonably relied on by experts in

the particular field. . . . This is so because of the sanction given by the witness’s experience and expertise.

. . . An expert may give an opinion based on sources

not in themselves admissible in evidence, provided (1)

the facts or data not in evidence are of a type reasonably

relied on by experts in the particular field, and (2) the

expert is available for cross-examination concerning his

or her opinion.’’ (Citations omitted; internal quotation

marks omitted.) National Publishing Co. v. Hartford

Fire Ins. Co., 94 Conn. App. 234, 251–53, 892 A.2d 261

(2006), rev’d on other grounds, 287 Conn. 664, 949 A.2d

1203 (2008); see also Conn. Code Evid. § 7-4.

Feldman testified about the types of information on

which he relied in forming his opinion that defective

Shotcrete caused the cracking at issue in all of the

pools. With regard to some of the pools, he testified

that the information on which he relied included his

firsthand observations of damage and the results of

various scientific testing of concrete. With regard to

other pools, he testified that the information on which

he relied included facts about the condition of the pools

that he learned from others. The evidence does not

reflect that Feldman personally observed, performed

any testing, or in any other manner studied the four

pools at issue in this claim. Feldman testified, however,

that he heard the trial testimony of John Kavanaugh,
who, during the time at which the pools at issue were

constructed, worked at the defendant’s concrete plant.

Kavanaugh testified with regard to the deficient manner

in which the defendant customarily manufactured and

transported Shotcrete to job sites, including the location of the four pools at issue in this claim.

The plaintiff’s attorney asked Feldman: ‘‘To a reasonable degree of structural engineering probability, based

upon what you observed at the pools, the nature of the

cracks, the size of the cracks, the pattern of the cracks,

the shoot date of the pools, the core testing performed,

and the commonality of the use of Paramount Shotcrete, did the subject pools [sustain] excessive shrinkage cracks due to nonuniform and different Shotcrete

mixes used in the same pool structures?’’ Feldman

replied, ‘‘Yes.’’

During cross-examination, the defendant’s attorney

asked Feldman about the four pools at issue in this

claim, specifically, whether he had ever visited and

inspected the four pools personally. Feldman testified

that he had not, but that someone had told him that

these pools exhibited the same types of cracks as the

other pools made with the defendant’s Shotcrete that

he personally had studied. In response to questions

concerning Feldman’s ability to render an opinion about

pools that he had not examined personally, Feldman

stood by his earlier opinion that defective Shotcrete

had caused the cracking in all of the pools. During

redirect examination, the plaintiff’s attorney asked

Feldman to render an expert opinion on the basis of

hypothetical facts that were supported by the evidence

presented at trial. The plaintiff’s attorney asked Feldman: ‘‘To a reasonable degree of engineering probability, if you take everything that you learned from your

studies, regarding these pools, even if you didn’t go to

a particular pool such as the pool that we just discussed

where there were repairs and photographs of repairs,

if you combined your knowledge of the general timing

of the shoot, engineer designs involved, the materials

coming from the same concrete plant, similar cracks

and crack patterns being reported and/or actually being

observed by you, can you say to a reasonable degree of

engineering probability that the cause of the excessive

cracking in this case was the bad and inconsistent Shotcrete material coming out of [the defendant’s] plant at

that general time period?’’ (Emphasis added.) Feldman

replied, ‘‘Yes.’’

Feldman identified the factual basis for his opinion,

revealing that he relied on many types of information

about the pools in question, including, but not limited

to, certain trial testimony concerning the Shotcrete

manufactured by the defendant that was common to

all of the pools at issue in this case. He had studied

some of the pools personally, but testified that he relied

on statements from a third party in assessing the defec-
tive condition of some of the pools at issue. The defendant has not demonstrated that, as a matter of law,

Feldman’s testimony was not supported by a sufficient

factual basis because it was based on facts perceived or

made known to him by others. At length, the defendant

cross-examined Feldman concerning the facts on which

he had relied. Any weaknesses that such questions may

have exposed in Feldman’s testimony were fodder for

the jury’s consideration in evaluating his testimony.

The defendant appears to suggest that Feldman’s

opinion was legally insufficient because, with regard to

the four pools at issue, he neither observed the pools

personally nor conducted any testing with regard to

them. This requirement, however, does not find support

in our law. As previously discussed, an expert witness

need not personally study or observe conditions, but

may apply his or her specialized knowledge to facts

perceived or made known to him at or before the proceeding. Conn. Code Evid. § 7-4 (b). With regard to the

pools he did not study personally, the evidence reflects

that Feldman did not base his opinion on the expert

opinion of others, but on material information that

he learned from others concerning both the physical

condition of the pools and the nature of the concrete

used in their construction. The expert’s reliance on

information of such character does not necessarily

undermine the reliability of the expert opinion. See,

e.g., Milliun v. New Milford Hospital, 310 Conn. 711,

729–30, 80 A.3d 887 (2013) (reliable medical opinion

may be based on inadmissible hearsay).

Moreover, we reiterate that an expert witness may

render an opinion on the basis of hypothetical facts that

fairly are supported by the evidence. Absent objection,

Feldman provided an expert opinion that was based

on hypothetical questions, as previously set forth. The

defendant has not demonstrated that these questions

were not fairly based on facts in evidence. See Conn.

Code Evid. § 7-4 (c) (expert witness may give opinion

in response to hypothetical questions). On the basis of

the foregoing analysis, we conclude that the jury fairly

could have reached the liability determination that it

did.

B

The second part ofthe defendant’s claim relates to the

jury’s assessment of compensatory damages. Relying on

the arguments it advanced before the trial court, the

defendant claims that, in several respects, the evidence

was insufficient to support the jury’s award of damages.

The defendant argues that the court improperly upheld

the jury’s verdict because (1) with regard to four pools,8

the jury awarded the plaintiff damages absent any evidence that the plaintiff had performed any repair work

or, thus, sustained any damages; (2) with regard to four

pools9for which respective homeowners had reached

settlements with the parties by the time of trial and
thereby established the only possible and proper measure of the plaintiff’s damages, the jury awarded damages that exceeded the amounts to which the plaintiff

was entitled; (3) the verdict reflects that the jury

awarded full replacement costs for all nineteen pools,

yetthe evidence demonstrated that only six pools arguably needed to be replaced; and (4) the jury’s verdict,

which was ten cents less than the gross damages figure

on which the plaintiff relied in argument, reflects that

the jury improperly included an award for lost profits

in its calculation of damages in contravention of the

court’s instructions. We agree with the defendant that

the verdict reflects error on the part of the jury and

that the jury’s award of damages must be overturned.

Previously in this opinion, we set forth the details

related to the jury’s verdict. Plainly, the amount of damages awarded by the jury exceeded the damages suggested during closing argument by the plaintiff’s

attorney. Further, the completed interrogatories reflect

that, for purposes of awarding damages, the jury treated

each of the nineteen pools identically.

Essentially, the plaintiff urges us to view the defendant’s claim as being premised on a flawed interpretation of the verdict. The plaintiff argues that, at trial, it

suggested a gross award of damages that was based

on the evidence and totaled $2,760,208. As discussed

previously in this opinion, this amount was set forth

during the plaintiff’s closing argument and was reflected

on the chart used as a visual aid during closing argument. The plaintiff argues that the jury’s overall award

of $2,760,207.90, justten cents less than this gross award

that its counsel suggested in argument, demonstrates

that the jury agreed with the plaintiff’s overall interpretation of the evidence and its evaluation of reasonable damages.

The plaintiff acknowledges, however, that ‘‘the jury

may have taken a mathematical ‘shortcut’ by dividing

an overall fair verdict, which was supported by the

evidence [and suggested by the plaintiff’s attorney], by

the total number of pools to respond to the interrogatories, which resulted in a net award [for damage] to each

pool of $145,274.10.’’ The plaintiff, in essence, urges us

to reject the defendant’s claim because ‘‘the jury’s intent

was clear and manifested in its verdict. The jury determined that the defendant was 100 percent liable for the

damages caused to each of the nineteen pools. The

gross award of damages matched almost identically the

gross amount of documented pastrepair costs,the 2005/

2006 prices of the thirteen pools for which replacements

were sought, and the supplemental demolition and landscape restoration costs. The jury’s mathematical shortcut in allocating the gross fair award is at best a defect

in ‘form’ and the verdict must be deemed intelligible

based on the evidence, arguments, and totality of this

case.’’ The plaintiff also suggests that we should look
with disfavor on the present claim because the defendant did not object to the form in which the jury

returned its verdict at the time it was returned, and did

not seek a remittitur.

As a starting point of our analysis, it does not appear

to this court that the jury’s verdict was defective as a

matter of form. ‘‘We note that if a verdict is defective

in form alone, rather than as a matter of law, the parties

should have objected at a time when the mistake could

have been corrected.’’ Tisdale v. Riverside Cemetery

Assn., 78 Conn. App. 250, 257–58, 826 A.2d 232, cert.

denied, 266 Conn. 909, 832 A.2d 74 (2003). ‘‘A verdict

is not defective as a matter of law as long as it contains

an intelligible finding so that its meaning is clear. . . .

A verdict will be deemed intelligible if it clearly manifests the intent of the jury.’’ (Citation omitted; internal

quotation marks omitted.) Id., 257.

There is no claim regarding the propriety of the interrogatories or the verdict forms provided to the jury. In

accordance with the court’s instructions, the jury fully

completed the interrogatories and verdict forms with

which it was provided. Nothing on the face of the completed interrogatories or verdict forms suggests that

the jury did not perform its role, insofar as it related

to reporting its verdict, properly. Consistent with its

completed interrogatories, the jury completed the plaintiff’s verdict form, awarding $2,760,207.90 in damages.

Thus, the verdict forms returned by the jury were complete, consistent, and intelligible. The verdict appeared

to manifest the will of the jury.10

In several respects, however, the defendant’s claim

exposes questions related to the propriety of the jury’s

damage award. The court properly instructed the jury

that ‘‘[i]njuries and losses for which the plaintiff should

be compensated include those it has suffered up to and

including the present time, and those it is reasonably

likely to suffer in the future as a proximate result of

the defective product.’’ In this product liability action,

the plaintiff reduced to exact figures the damages it

sought. Thus, the plaintiff presented detailed evidence

of the cost of repairs it had undertaken with regard to

pools for which it sought the recovery of such costs.

Likewise, the plaintiff presented evidence of what it

would cost, at the time of trial, to replace the pools for

which it sought replacement costs. Additionally, the

plaintiff presented evidence of what it deemed miscellaneous costs related to the litigation. In argument, the

plaintiff presented these figures to the jury as the extent

of its damages that were proven by the evidence. This

was not a case in which the jury was asked to consider

a type of injury for which neither the parties nor the

court could readily suggest either an award of damages

or a method by which to calculate such damages.

The plaintiff asserts that the overall award of damages is proper because it nearly mirrored the gross
amount of damages that were permitted by the evidence

and sought by the plaintiff. The plaintiff does not appear

to suggest that the jury’s finding of damages for each

pool is supported by the evidence. Instead, the plaintiff

appears to invite us to disregard the finding of damages

for each pool, as set forth in the completed interrogatories, and asks that we evaluate the verdict by looking

to the overall award of damages. As stated previously

in our discussion, the plaintiff posits that the completed

interrogatories should be viewed as a harmless ‘‘mathematical shortcut’’ by which the jury apportioned its

award of damages among the nineteen pools at issue.

Contrary to the plaintiff’s arguments, there is no

authority for the proposition that we should not interpret the jury’s interrogatories literally, that is, as an

accurate reflection that the jury determined there to be

and awarded the plaintiff $145,274.10 in damages for

each pool. There is no basis in law for this court to

disregard the jury’s findings therein as we undertake

judicial review of the jury’s verdict. ‘‘[T]he purpose of

interrogatories [is] to elicit a determination of material

facts, [and] to furnish the means of testing the correctness of the verdict rendered, and of ascertaining its

extent.’’ (Internal quotation marks omitted). Viera v.

Cohen, 283 Conn. 412, 449–50, 927 A.2d 843 (2007). The

assessment of damages was contested at trial, and the

jury was called upon to set forth its findings as to the

damages, if any,related to each pool. ‘‘Special interrogatories test the jury’s general verdict against its conclusions as to the ultimate controlling facts. Special

questions are propounded to a jury to bring out some

or all of the determinative facts which should be considered in the formation of a jury’s general verdict. Such

questions . . . may show how closely, or otherwise,

the jury has followed the trial court’s instructions

. . . .’’ (Footnotes omitted.) 75B Am. Jur. 2d 383 Trial

§ 1590 (2007). ‘‘A special verdict, finding or answer must

be construed in the light of the surrounding circumstances. It is to be construed in the light of, and in

connection with, the pleadings, the issue or question

submitted, the instructions, jury interrogatories, and

. . . the evidence.’’ 89 C.J.S. Trials § 1177 (2012).

The record supports the plaintiff’s observation that,

given the size of the jury’s award and the fact that it is

a mere ten cents less than the gross amount of damages

suggested by the plaintiff’s attorney during closing argument, it appears that the jury awarded damages consistent with that gross damages figure and, as nearly as

practicable, divided that figure by nineteen to arrive at

its findings of damages for each pool. This is problematic for a number of reasons. First, such an approach to

completing the interrogatories would have disregarded

the court’s instructions that the jury find damages separately for each pool and record its separate findings

on the interrogatory forms. Second, our review of the

evidence does not explain or support the jury’s identical
findings of damages for all nineteen pools, particularly

where the plaintiff had carefully detailed in the course

of argument what it believed to be the full extent of its

claimed and proven damages with regard to each pool.

Third, the court instructed the jury that lost profits were

not a proper component of damages in this case, yet

the gross amount of damages explicitly suggested by

the plaintiff’s attorney included lost profits. Additionally, the gross damages figure suggested by the plaintiff’s attorney included miscellaneous expenses for

which the jury, in its responses to the interrogatories,

made a finding of zero dollars.

Setting aside the impossibility of reconciling the

amounts of damages awarded for the nineteen pools

with the amounts sought by the plaintiff, the plaintiff

suggests that the jury was not bound by the gross damages figure suggested by its attorney during argument,

which, adjusted to exclude a claim for lost profits, was

$2,365,562. In arguing that a higher gross damages

award was not necessarily improper, the plaintiff relies

on the principle, reflected in the court’s instructions,

that the arguments of counsel are not evidence and that

the determination of damages is within the province of

the jury. The fact remains, however, that with regard

to six pools for which the plaintiff did not seek any

future damages, the jury’s award exceeded the maximum award made possible by the evidence of past

damages. For four of these pools, the parties had

reached settlements prior to trial and the plaintiff asked

only for the cost of prior repairs that had been undertaken, which, in each case, was far less than the

$145,274.10 awarded by the jury.11 With regard to several

other pools, the plaintiff sought future damages in the

form of replacement costs, yet the amounts awarded

exceeded the amounts sought by the plaintiff. At trial,

the plaintiff presented evidence that the pools that

needed to be replaced in the future could be replaced

at the cost for which the plaintiff initially constructed

the pools. Evidence of these costs was presented, yet

our review of such evidence does not shed light on or

explain the jury’s uniform findings of damages. Further,

as the defendant argues, this evidence appears to support an award of future damages that was less, not

more, than that suggested by the plaintiff’s counsel in

argument. The plaintiff also presented evidence that it

would cost an additional $25,000 to $35,000 to remove

each of the damaged pools. Yet, the plaintiff suggests

that the jury, having reviewed these materials in evidence, reasonably could have found that replacement

costs actually exceeded these amounts. Insofar as the

jury was bound to base its findings on the evidence,

rather than speculation, such an argument is not persuasive.

Here, there is no rational view of the evidence that

supports the identical finding of damages with regard

to each of the nineteen pools at issue. These findings
reflect that the jury did not make an independent assessment of damages with regard to each pool. Furthermore, the jury made a total award of damages that

nearly matched the gross damages figure suggested by

the plaintiff’s counsel before subtracting lost profits.

For the reasons previously set forth, such an award is

not supported by the evidence. The completed interrogatories, as well as the overall amount of the award,

undermine confidence in the manner in which the jury

assessed damages overall; they reflect that the jury

either failed or declined to follow the court’s instructions. For these reasons, we conclude that the court

abused its discretion in failing to set aside the verdict

solely as to the jury’s assessment of damages. See

Schroeder v. Triangulum Associates, 259 Conn. 325,

332, 789 A.2d 459 (2002).

II

Next, we address the defendant’s claim that the court

improperly awarded the plaintiff punitive damages. The

defendant argues that: (1) the act does not contemplate

an award of punitive damages when a plaintiff’s cause

of action is based on property damages only; (2) the

evidence did not permit such an award in the present

case because there was no evidence that the defendant

acted in reckless disregard for the safety of product

users, consumers or others who were injured by the

Shotcrete; and (3) the amount of punitive damages

awarded exceeded the maximum possible award of

punitive damages that was supported by the evidence.

We will address each aspect of the claim, in turn.

A

First, the defendant challenges the propriety of the

award of punitive damages on the ground that the act

does not contemplate an award of punitive damages

when a plaintiff’s cause of action is based on property

damages only. Furthermore, the defendant argues that,

even if punitive damages may be awarded when a plaintiff’s cause of action is based on property damages only,

such damages may be awarded only if there was a risk

that consumers or others could sustain bodily injury

by means of the defective product. The defendant’s

arguments are not persuasive.

General Statutes § 52-240b provides: ‘‘Punitive damages may be awarded if the claimant proves that the

harm suffered was the result of the product seller’s

reckless disregard for the safety of product users, consumers or others who were injured by the product. If the

trier of fact determines that punitive damages should be

awarded, the court shall determine the amount of such

damages not to exceed an amount equal to twice the

damages awarded to the plaintiff.’’ Several statutorily

defined words applicable to the act are relevant.

‘‘ ‘Harm’ includes damage to property, including the

product itself, and personal injuries including wrongful
death. As between commercial parties, ‘harm’ does not

include commercial loss.’’ General Statutes § 52-572m

(d).12 A ‘‘ ‘[p]roduct liability claim’ includes all claims

or actions brought for personal injury, death or property

damage caused by the manufacture, construction,

design, formula, preparation, assembly, installation,

testing, warnings, instructions, marketing, packaging or

labeling of any product. . . .’’ General Statutes § 52-

572m (b).

There is no dispute that the plaintiff’s cause of action

is based on a claim of property damage. In rejecting

the defendant’s interpretation of the act in its thorough

memorandum of decision concerning punitive damages, the court reasoned that the legislature intended

to permit an award of punitive damages in connection

with product liability claims involving only property

damage. The court relied on its interpretation of the

relevant statutory language previously set forth, as well

as a Superior Court decision that reached the same

legal conclusion, American Airlines, Inc. v. National

Automatic Products Co., 39 Conn. Supp. 269, 272, 477

A.2d 171 (1984).13

The issue presents a question of statutory interpretation that warrants our plenary review. See Felician

Sisters of St. Francis of Connecticut, Inc. v. Historic

District Commission, 284 Conn. 838, 847, 937 A.2d 39

(2008). ‘‘When construing a statute, [o]ur fundamental

objective is to ascertain and give effect to the apparent

intent of the legislature. . . . In other words, we seek

to determine, in a reasoned manner, the meaning of the

statutory language as applied to the facts of [the] case,

including the question of whether the language actually

does apply. . . . In seeking to determine that meaning,

General Statutes § 1-2z directs us first to consider the

text of the statute itself and its relationship to other

statutes. If, after examining such text and considering

such relationship, the meaning of such text is plain and

unambiguous and does not yield absurd or unworkable

results, extratextual evidence of the meaning of the

statute shall not be considered. . . . When a statute is

not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative

policy it was designed to implement, and to its relationship to existing legislation and common law principles

governing the same general subject matter . . . .’’

(Citation omitted; internal quotation marks omitted.)

Cogan v. Chase Manhattan Auto Financial Corp., 276

Conn. 1, 7, 882 A.2d 597 (2005).

Like the trial court, we conclude that a fair reading

of the governing statute, § 52-240b, in conjunction with

the relevant definitional provisions expressly made

applicable to that statute and previously set forth, yields

a plain and unambiguous interpretation that the statute

permits an award of punitive damages in connection
with a product liability claim involving damage to property only. The defendant goes on to argue that even if

§ 52-240b permits an award of punitive damages in the

context of a claim based on property damage only, the

text of the statute reflects that such damages must arise

in a case in which there was, in fact, a risk that product

users, consumers, or others could sustain bodily injury

by means of the defective product. The defendant

argues that, here, ‘‘the plaintiff . . . presented no evidence that the safety of consumers was ever at risk or

that injury to consumers was even a possibility.’’

The defendant’s argument is based on the language

of § 52-240b, which provides: ‘‘Punitive damages may

be awarded if the claimant proves that the harm suffered was the result of the product seller’s reckless

disregard for the safety of product users, consumers

or others who were injured by the product. . . .’’

(Emphasis added.) The defendant suggests that the use

of the words ‘‘safety’’ and ‘‘injured’’ in the statute reflect

that, at the very least, the legislature intended to permit

an award of damages in cases in which bodily injury

was at risk. The defendant argues that, although there

was evidence of property damage, there was no evidence of a risk of bodily injury in the present case.

Underthe circumstances of the present case, we need

not determine whether the defendant’s suggested interpretation of § 52-240b, requiring a risk of bodily injury,

is correct. To demonstrate reversible error, it is not

enough for the defendant to demonstrate as a matter

of law that punitive damages may be awarded only if

there was a risk that product users, consumers, or others could sustain bodily injury by means of the defective

product. The defendant bears the burden of demonstrating that any claimed error in the court’s interpretation

and application of the law affected the verdict returned

in the present case. ‘‘Whether an error is harmful or

harmless depends upon whetherit affected the verdict.’’

Beinhorn v. Saraceno, 23 Conn. App. 487, 494 n.3, 582

A.2d 208 (1990), cert. denied, 217 Conn. 809, 585 A.2d

1233 (1991).

Thus, to demonstrate reversible error, the defendant

must demonstrate that the jury did not base or was

precluded from basing its award on a finding that bodily

injury was at risk, but the record does not support such

an interpretation of the jury’s findings. When the court

instructed the jury concerning punitive damages under

the act, it cannot be said to have limited the jury to

consider either property damage or bodily injury.

Instead, the court instructed the jury by referring to

the statutory language of § 52-240b that, as previously

discussed, refers to ‘‘the product seller’s reckless disregard for the safety of product users, consumers or others who are injured by the product.’’14 The defendant

did not file a request to charge related to the issue of

punitive damages, did not take any exceptions to the
court’s charge, and, on appeal, does not attempt to

challenge the propriety of the court’s charge. Moreover,

the interrogatories presented to the jury did not require

it to provide findings in this specific regard concerning

the facts on which it based its punitive damage award.15

Thus, with regard to this discrete issue concerning the

nature of the risk posed by the defendant’s product,

the jury returned what may be deemed a general verdict.

Consequently, the record does not provide a basis on

which to determine whether or not the jury based its

punitive damage award on a finding that bodily injury

was at risk. Because the record does not demonstrate

that the verdict resulted from the issue that the defendant seeks to adjudicate on appeal, we need not resolve

that issue.16

Additionally, contrary to the stated premise of the

defendant’s argument, the evidence readily supported

a finding that its defective productrisked causing bodily

injury to product users. There was ample evidence of

substantial cracking in various surface areas of pools

that were constructed with Shotcrete manufactured by

the defendant, such as stairs, benches, swim outs, walls,

and floors. The undisputed evidence reflects that the

Shotcrete at issue was intended to be used in such

recreational swimming pools, which made itreasonable

to infer that persons were likely to come in contact

with the various surface areas of the pools. The Shotcrete was delivered to the pool sites by the defendant.

On the basis of this evidence, we readily conclude that

the evidence reasonably supported a finding by the jury

that the defendant had acted in reckless disregard of

a foreseeable risk that others could sustain bodily injury

by means of the defective Shotcrete. For the foregoing

reasons, we conclude that this aspect of the defendant’s

claim is unavailing.

B

Next, the defendant argues that the evidence did not

permit an award of punitive damages in the present

case because there was no evidence that the defendant

acted in reckless disregard for the safety of product

users, consumers or others who were injured by the

Shotcrete. We disagree.

As previously stated in this opinion, the jury in completing its interrogatories made a finding that the plaintiff had proven by a preponderance of the evidence that

the defendant acted with a reckless disregard for the

safety of product users, consumers or others who were

injured by the product. In its memorandum of decision

concerning punitive damages, the court observed that

its role with regard to punitive damages was limited to

determining the amount of the punitive damages award.

The court stated: ‘‘While the jury found that the plaintiff

. . . had proven its entitlement to punitive damages,

the amount itself is a responsibility and a duty reserved

to the court.’’ Nonetheless, in its lengthy memorandum
of decision concerning punitive damages, the court did

not merely address the defendant’s contention, discussed in part II A of this opinion, that punitive damages

were not permitted as a matter of law and determine

the amount of its damage award, but it purported to

make findings concerning the conduct of the defendant

on the basis of the evidence presented at trial. Also, it

did so after it had summarily denied the defendant’s

motion to set aside the verdict. Ultimately, the court

concluded that ‘‘a reasonable person could readily

arrive at the same conclusion [with respect to the issue

of punitive damages as that] agreed upon by this jury.’’

In this portion of its appeal, the defendant appears

to focus on these findings made by the court, but also

argues generally that the evidence, ‘‘at best demonstrates that the owners of [the defendant] may have

been less involved in the day-to-day operations of [the

defendant’s Shotcrete] facility than they might have

been.’’ The defendant asserts that the plaintiff did not

present evidence that it acted ‘‘more than negligently

with respect to the operation of the plant and the delivery of the Shotcrete to the plaintiffs. As a result, the

award of punitive damages should be set aside.’’

Insofar as this aspect of the defendant’s appeal challenges the propriety of the finding that it acted with

a reckless disregard for the safety of product users,

consumers or others who were injured by the defendant’s product, it essentially challenges the court’s

denial of its motion to set aside the finding of the jury.

The record of the trial proceedings reflects that the

defendantraised the evidentiary claim herein in connection with that motion. Although the court, in the context

of its memorandum of decision awarding punitive damages, referred to the propriety of that finding and the

evidence that supported it, we will regard the claim as

challenging the court’s summary denial of the motion

to set aside the verdict. The applicable standard of

review is set forth in part I of this opinion.

We conclude that the evidence supported the jury’s

finding of fact. The statute expressly provides that punitive damages may be awarded ‘‘if the claimant proves

that the harm suffered was the result of the product

seller’s reckless disregard for the safety of product

users, consumers or others who were injured by the

product. . . .’’ General Statutes § 52-240b. With regard

to the reckless disregard requirement, this court has

stated: ‘‘As a general matter, [p]unitive damages . . .

are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and

wanton violation of those rights. . . . In fact, the flavor

of the basic requirement to justify an award of punitive

damages is described in terms of wanton and malicious

injury, evil motive and violence. . . . In a products liability action, [p]unitive damages may be awarded if the

claimant proves that the harm suffered was the result
of the product seller’s reckless disregard for the safety

of product users, consumers or others who were injured

by the product. . . . As a general rule, punitive damages may be awarded only for outrageous conduct. . . .

The conduct must be outrageous, either because the

defendant’s acts are done with an evil motive or because

they are done with reckless indifference to the interests

of others.’’ (Citations omitted; internal quotation marks

omitted.) Ames v. Sears, Roebuck & Co., 8 Conn. App.

642, 655, 514 A.2d 352, cert. denied, 201 Conn. 809, 515

A.2d 378 (1986).

‘‘The occasion for awarding punitive damages is quite

different from that of awarding compensatory damages

under our long-standing rules governing the award of

punitive damages. . . . Punitive damages are awarded

when the evidence shows a reckless indifference to the

rights of others or an intentional or wanton violation

of those rights. . . . If awarded, they are restricted to

cost of litigation less taxable costs of the action. . . .

Moreover, punitive damages generally have the flavor

of punishment against a defendant for the quality of his

conduct and of deterrence to a defendant or others

against such conduct in the future. . . . Such damages

are, therefore, not doctrinally duplicative of compensatory damages, butrather serve special, limited purposes

other than compensation.’’ (Citations omitted; footnote

omitted; internal quotation marks omitted.) Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509,

532–33, 562 A.2d 1100 (1989).

The defendant suggests in argument that the jury’s

finding is unsupportable because there was no evidence

that it intentionally violated the plaintiff’s rights. Yet,

as previously stated, reckless disregard may be proven

by evidence of conduct by a defendant that is outrageous because it was done with reckless indifference

to the interests of others. There was ample evidence

concerning the defendant’s principals, employees, plant

operations, procedures, equipment and methods of

delivery. On the basis of the evidence presented at trial,

the jury reasonably could have found that the defendant

lacked trained employees and quality control procedures to produce and deliver quality Shotcrete consistently. The evidence supported a finding that persons

in positions of control for the defendant even lacked a

basic understanding of how Shotcrete was manufactured and were seemingly unconcerned either with producing a product that was manufactured and delivered

according to industry standards or with how their pattern of conduct would negatively affect the interests

of the consumers who purchased this critical building

material from their company.

In its decision concerning punitive damages, the

court aptly discussed evidence that is relevant to our

analysis. The court stated in relevant part: ‘‘Given [the]

essential function for concrete in its several manifesta-
tions, and the readily foreseeable damages wrought by

defectively formulated and/or manufactured concrete,

the court was surprised to learn during the course of

the trial that some principals of the defendant . . .

demonstrated a cavalier or indifferent attitude toward

their company’s product offered for sale. This attitude

was exemplified and borne out by the sworn testimony

of some of the officers of [the defendant], Richard and

Grace Vona, as well as Carlo Vona, each of whom professed ignorance in the key areas like the specifics of

the concrete manufacturing process itself.’’

The court went on to observe: ‘‘John Kavanaugh was

formerly employed as a concrete batch mixer and delivery driver for [the defendant] after a short earlier stint

working at Paramount Stone. He worked for the Vonas

[at the defendant] for approximately two and one-half

years. During that time, although not required by law,

the defendant concrete plant never met the specifications for industry certification by the American Concrete Institute. Despite a trip to a Las Vegas concrete

convention with Richard Vona, [a vice president of the

defendant], and his attendance at two other classes,

Kavanaugh did not consider himself properly trained

as a batch mixer by [the defendant]. Nonetheless, it

became his job to ensure that the raw materials used

in making Shotcrete were properly mixed in the defendant’s trucks. Kavanaugh testified to problems and

shortcomings with the defendant’s equipment. These

included the lack of a ‘moisture meter,’ which could

accurately measure water content in the sand the company stored outdoors, and the lack of any drum counters, which measure the number of revolutions made by

the rotating concrete drums of the defendant’s mixing

trucks.17 Certain maintenance issues at the plant and

with the concrete trucks also adversely affected the

finished product sold by the defendant to the plaintiff.

The jury also heard deposition testimony of Steve Riviere, the former president of [the defendant], who left his

job at the enterprise abruptly. It reinforced the picture

painted by both Kavanaugh and the circumstantial evidence of a small, poorly run and poorly equipped company lacking quality control, adequate staff and training

and equipment maintenance, leading to the delivery of

an inconsistent concrete product, all to the plaintiff’s

detriment. . . .

‘‘[The evidence demonstrated that][c]oncrete is properly made with concrete sand, which is a sand formulated for concrete and containing three-eighths inch

stone. However, Kavanaugh . . . testified that [the

defendant] also used masonry sand in its concrete

mixes on a random basis, a sand which has a different

granularity and consistency. Without other adjustments

to the mix, masonry sand and concrete sand therefore

are not interchangeable in Shotcrete, and Kavanaugh’s

testimony was supported by the evidence, not only in

the faults in the cracked Shotcrete, but by the defendant
company’s own internal documentation obtained by the

plaintiff during discovery. A delivery ticket showed

masonry sand delivered to [the defendant] on more

than one occasion. In light of all the other evidence of

defective Shotcrete, the jury obviously chose not to

credit the defense explanation that this masonry sand

was actually delivered to Paramount Stone [which was

located] across the street [from the defendant’s plant].’’

The court went on to observe, accurately, that the

trial testimony of Richard Vona, the defendant’s vice

president; Grace Vona, the defendant’s owner; and

Carlo Vona, a longtime mason who had some involvement in the defendant and is married to Grace Vona,

was damaging to the defendant’s case. Richard Vona

testified, in part, that after coming up with the idea to

create the defendant company in 2003, he only visited

the defendant’s plant on a couple of occasions and did

not even discuss the operations of the company with

others. He testified that he lacked a basic understanding

of how Shotcrete was made. Despite evidence that she

was involved intimately in the defendant’s finances, the

defendant’s owner, Grace Vona, testified that she had

never visited the defendant’s plant and was unaware if

the defendant ever was profitable. ‘‘The court is convinced, and the jury likely believed, that once the cracks

in all the pools came to light, the Vonas were . . .

eager to distance themselves from their own concrete

company and what went on there as a way of distancing

themselves from any liability for the defendant’s defective Shotcrete, the Shotcrete that went into the nineteen

cracked pools built by the plaintiff.

‘‘The jury also heard testimony from Mel Thorne,

who has served as the chief operating officer of [the

defendant] since the 2009 departure of Steve Riviere.

While not employed by the defendant at the time of the

manufacture and sale of the defective Shotcrete used

by the plaintiff in nineteen of its pools, Thorne testified

that he has been unable to verify the existence of any

formal quality control process used by the defendant

company during that time frame.’’

On the basis of the foregoing evidence, accurately

set forth by the trial court, we readily conclude that

the evidence reasonably permitted a finding that the

defendant, through its officers and employees, acted in

an outrageous manner. The evidence showed that the

defendant was not merely negligent or inadvertent in its

manufacturing process, but that its business operations

reflected a wholesale lack of concern for the interests

of the purchasers of its product, which was a critical

building material in pools. Accordingly, we reject the

defendant’s claim that the evidence did not permit a

finding of reckless disregard on its part.

C

Last, as it did before the trial court, the defendant
argues that the court’s punitive damage award was

improper because it exceeded the amount of punitive

damages that was supported by the evidence. We agree

with the defendant that the court improperly calculated

punitive damages.

The court held a hearing on the matter of its award

of punitive damages. At that hearing, the attorneys representing the plaintiff, Thomas P. O’Dea, Jr., and Raymond J. Plouffe, argued in support of an award of

punitive damages in this case. Plouffe and O’Dea presented the court with affidavits concerning their attorney’s fees as well as redacted bills concerning legal

services rendered in the course of their representation

of the plaintiff in this matter. By way of a supplemental

affidavit concerning attorney’s fees dated April 15, 2011,

O’Dea averred that he had expended 1360 hours on the

present case. He stated: ‘‘My customary hourly rate for

services rendered is $325.00. In this matter we agreed

to a discounted rate of $150 per hour for my rate.’’

Additionally, he averred, in relevant part, that these

figures did not include time expended after March 1,

2011, which was estimated to be twenty hours. There

was no objection to this submission, and the defendant

did not dispute the accuracy of the representations

therein.

In its memorandum of decision, the court found that

attorney’s fees attributable to Plouffe and another attorney associated with his law firm were $252,392.50. On

appeal, the defendant does not challenge this finding.

With respectto O’Dea,the court stated: ‘‘Attorney O’Dea

stated in his affidavit that his customary hourly rate for

legal services is $325, and that in this matter he agreed

with the plaintiff to a discounted rate of $150 per hour.

However, this was a discount intended to inure to the

benefit of the plaintiff, not the defendant. For purposes

of this order, the court finds that counsel worked a

minimum of 1360 hours on these cases, and the court

also finds that the regular hourly rate of $325 for Attorney O’Dea’s services is both reasonable and appropriate. The attorney’s fees for Attorney O’Dea are

therefore found to be $442,000.’’

The defendant asserts that the award of $442,000

cannot stand because there was no evidence that O’Dea

ever charged the plaintiff this amount for attorney’s

fees. Instead, the defendant argues, the evidence ‘‘supports at most an award of $204,000,’’ representing 1360

hours billed at the hourly rate that O’Dea represented

he had billed the plaintiff, $150 per hour. The defendant

argues that the court’s award of more than the plaintiff’s

actual litigation expenses exceeded a proper measure

of punitive damages applicable in a case such as the

present case and amounted to an arbitrary deprivation

of its property in violation of the due process clause

of the federal constitution.

In determining the proper method by which to calcu-
late damages in the present case, the court observed

that, beyond stating in § 52-240b that punitive damages

‘‘[shall] not . . . exceed an amount equal to twice the

damages awarded to the plaintiff,’’ the legislature did

not provide a method by which to calculate such damages under the act. The court, relying on precedent

including Lynn v. Haybuster Mfg., Inc., 226 Conn. 282,

289–90, 627 A.2d 1288 (1993), Berry v. Loiseau, 223

Conn. 786, 825–27, 614 A.2d 414 (1992), and Arnone v.

Enfield, 79 Conn. App. 501, 521, 831 A.2d 260, cert.

denied, 266 Conn. 932, 837 A.2d 804 (2003), reasoned

that it was proper to follow the common-law rule limiting punitive damages to the plaintiff’s litigation

expenses minus taxable costs.

On appeal, neither party takes issue with the court’s

legal determination that, faced with legislative silence

as to the proper method of calculating punitive damages

under the act, it is appropriate to follow the commonlaw rule and award the plaintiff its litigation expenses,

less taxable costs. For this reason, we do not adjudicate

the issue.18 The issue, as framed by the defendant, is

whetherthe court properly assessed the plaintiff’s litigation expenses in accordance with the evidence.

In determining whether the court properly calculated

damages under the common-law rule, we begin by

observing that in Berry v. Loiseau, supra, 223 Conn.

827, our Supreme Court, in upholding the viability of

the common-law rule, stated: ‘‘In Waterbury Petroleum

Products,Inc. v. Canaan Oil & Fuel Co., [193 Conn. 208,

236, 477 A.2d 988 (1984)], we declined [an] invitation to

stray from our well settled rule regarding the measurement of punitive damages. We affirmed the continuing

viability of a long line of cases holding that common

law punitive damages serve primarily to compensate the

plaintiff for his injuries and, thus, are properly limited to

the plaintiff’s litigation expenses less taxable costs.

. . . We recognized, moreover, that our rule, when

viewed in the light of the increasing costs of litigation,

also serves to punish and deter wrongful conduct. . . .

In recent years, we have continued to adhere to the

view that our traditional rule remains viable. . . . We

remain convinced that a rule limiting punitive damages

awards to the expenses of litigation less taxable costs

fulfills the salutary purpose of fully compensating a

victim for the harm inflicted on him while avoiding

the potential for injustice which may result from the

exercise of unfettered discretion by a jury.’’ (Citations

omitted; emphasis added; internal quotation marks

omitted.); see also Anastasia v. General Casualty Co.

of Wisconsin, 307 Conn. 706, 709 n.2, 59 A.3d 207 (2013);

Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 96–97,

881 A.2d 139 (2005); Matthiessen v. Vanech, 266 Conn.

822, 826 n.5, 836 A.2d 394 (2003). It is clear in our law

that an award of punitive damages ‘‘cannot exceed the

amount of the plaintiff’s expenses of litigation in the

suit, less his taxable costs.’’ Hanna v. Sweeney, 78Conn.
492, 494, 62 A. 785 (1906); see also Maisenbacker v.

Society Concordia, 71 Conn. 369, 378, 42 A. 67 (1899)

(plaintiff’s expenses limit amount of punitive damages

which can be awarded).

In the present case, the court was presented with

evidence of the plaintiff’s litigation expenses. With

regard to the expenses related to O’Dea, which are the

subject ofthis claim, O’Dea made averments concerning

the number of hours that he had worked on the present

case (1360 hours) as well as the hourly rate at which

he had agreed to perform legal services for the plaintiff

($150 per hour). O’Dea submitted redacted bills related

to the 1360 hours in legal services rendered by him. He

averred that, with regard to these bills, the Scottsdale

Insurance Company had paid $130,727.99 in fees and

his firm was owed $48,337.91 in fees from either the

Scottsdale Insurance Company or the plaintiff.

The court properly stated that it was permitted to

award punitive damages limited to the plaintiff’s litigation expenses, less costs. Yet, the court went on to

undertake an independent assessment of the value of

O’Dea’s fees, a type of inquiry that is appropriate when a

court is authorized to award statutory attorney’s fees.19

Thus, it based its award on a lodestar calculation and

considerations related thereto. See Ernst v. Deere &

Co., 92 Conn. App. 572, 576, 886 A.2d 845 (2005).20

The court’s award, therefore, cannot be upheld as

being limited to the plaintiff’s litigation expenses. It is

clear from the evidence presented to the court that the

plaintiff’s expenses were limited to the fees it incurred

pursuant to its agreement with O’Dea, namely, fees

billed at an hourly rate of $150. It was contrary to the

evidence for the court to award the plaintiff litigation

expenses billed at $325 an hour. Accordingly, we

reverse the award of punitive damages and, as part of

the proceedings on remand, order the court to consider

the plaintiff’s litigation expenses in accordance with

the foregoing analysis.21

Additionally, we note that of the 1360 hours of legal

services rendered by O’Dea in the present case as of

the time of the punitive damages hearing, O’Dea averred

that the Scottsdale Insurance Company (Scottsdale)

had paid some of the fees and that the company possibly

owed him more fees. In its memorandum of decision,

the court referred to the legal fees incurred by the

plaintiff in defending ‘‘four other civil suits brought

against it by its customers,’’ and determined that such

fees had been proximately caused by the defendant and

should be borne by the defendant as punitive damages

in this case. Yet, the court neither referred specifically

to Scottsdale nor set forth clear findings concerning

how the services rendered by O’Dea for which he was

paid or expected to be paid by Scottsdale were incurred

in connection with the prosecution of the present case.

Because we remand the case for a new hearing before
the court to reassess the amount of the plaintiff’s punitive damages, the court, on remand, must revisit the

issue and make appropriate findings concerning the

legal services for which fees were incurred by Scottsdale and determine whether the fees associated with

such services properly may be included in the plaintiff’s

litigation expenses in the present case.

The judgment is affirmed with respect to the jury’s

findings that the defendant is liable for violating the

act and that the plaintiff is entitled to punitive damages

under the act. The judgment is reversed with respect

to the jury’s award of compensatory damages and the

trial court’s award of punitive damages. The case is

remanded for a hearing in damages before a jury—or

before the court, if the parties agree to waive a hearing

before a jury—on the plaintiff’s claim for compensatory

damages, and for a separate hearing, to be held before

the trial court, to determine, in accordance with this

opinion, the award of punitive damages to which the

plaintiff is entitled under the act.

In this opinion the other judges concurred.

1 The plaintiff’s original complaint, dated May 21, 2009, and its amended

complaint, dated February 14, 2011, were brought solely against Paramount

Concrete, Inc. The judgment from which Paramount Concrete, Inc., appeals

was rendered solely against Paramount Concrete, Inc. During the course of

the litigation, the trial court consolidated this action with other actions that

were brought against the plaintiff by other parties, namely, homeowners

seeking damages arising from defective swimming pools. The record reflects

that settlements were reached in those other actions prior to the commencement of the trial. Because Paramount Concrete, Inc., is the only defendant

in this appeal, we referto that party as the defendant throughout this opinion.

2 We conclude in part I B of this opinion that the jury’s award of compensatory damages must be set aside. We are not persuaded, however, that the

jury’s error in awarding damages affects or calls into doubt the propriety

of its findings concerning liability or punitive damages. Accordingly, in parts

I A and II B of this opinion, we consider and reject the defendant’s claims

concerning those findings made by the jury. Aside from the issue of damages,

our remand order does not implicate those findings made by the jury.

The jury’s error in awarding compensatory damages does not require us to

set aside the court’s determination that punitive damages were appropriate in

the present case. In part II A of this opinion, we uphold that aspect of the

trial court’s judgment. In part II C of this opinion, however, we agree with

the defendant that the court improperly calculated the punitive damage

award. Accordingly, we will remand the case to the trial court with direction

that it reassess the amount of punitive damages consistent with this opinion

and General Statutes § 52-240b following the hearing in damages.

3 Consistent with its special defenses, the defendant attempted to prove,

among other things, that the plaintiff arranged for delivery of the Shotcrete

under conditions that reduced its strength and usefulness; added water to

the Shotcrete after it was delivered, such that it could not function properly;

utilized persons who did not apply the Shotcrete appropriately; and failed

to utilize a sufficient quantity of steel in the construction of the pools at

issue, such that the Shotcrete did not function in the manner for which it

was intended.

4 Although the plaintiff, in its complaint, alleged damages with regard to

seventeen pools, attrial,the plaintiff presented evidence and sought damages

with regard to nineteen pools. The disparity is not an issue in this appeal.

5 With regard to the nineteen pools at issue, the dollar amounts of damages

sought by the plaintiff varied significantly. The amounts of past damages

ranged from zero dollars to $138,763.89. The amounts of future damages

ranged from zero dollars to $293,660. The total damages amounts ranged

from $17,297.19 to $306,563.81

6 The court found that the plaintiff incurred attorney’s fees totaling

$694,392.50.
7 At trial, the pools at issue were identified as being located at 19 Deerwood

Lane, Westport; 917 Merwins Lane, Fairfield; 220 Greenfield Hill Road, Fairfield; and 62 Weston Road, Westport.

8 At trial, the pools at issue were identified as being located at 220 Greenfield Road, Fairfield; 17 Apple Tree Lane, Darien; 19 Deerwood Lane, Westport; and 917 Merwins Lane, Fairfield.

9 At trial, the pools at issue were identified as being located at 17 Joanne

Lane, Weston; 17 Twelve O’Clock Road, Weston; 47 Appletree Lane, New

Canaan; and 9 Marc Lane, Westport.

10 ‘‘Subject to the provisions of Section 16-17, the judicial authority shall, if

the verdict is in order and is technically correct, accept it without comment.’’

Practice Book § 16-31.

11 As supported by the evidence, the plaintiff argued for an award of

$40,765.08 for 17 Joanne Lane, Weston; $34,596.08 for 17 Twelve O’Clock

Road, Weston; $49,622.43 for 47 Appletree Lane, New Canaan; and $67,938.14

for 9 Marc Lane, Westport.

12 ‘‘Commercial loss’’ does not include costs incurred by a commercial

party in repairing damage to property caused by a defective product, nor

is it limited to property owned by the party seeking to recover under the

act. See Sylvan R. Shemitz Designs, Inc. v. Newark Corp., 291 Conn. 224,

240–41, 967 A.2d 1188 (2009).

13 American Airlines, Inc., was cited approvingly in Ames v. Sears, Roebuck & Co., 8 Conn. App. 642, 655, 514 A.2d 352, cert. denied, 201 Conn.

809, 515 A.2d 378 (1986).

14 The court stated in relevant part: ‘‘Now, in addition to seeking compensatory damages, the plaintiff seeks an award of punitive damages. Punitive

damages are damages awarded not to compensate the plaintiff for any injury

or losses, but to punish the defendant for outrageous conduct and to deter

it and others like it from similar conduct in the future.

‘‘Punitive damages may be awarded for conduct that is outrageous because

of the defendant’s reckless indifference to the rights of others or an intentional and wanton violation of those rights.

‘‘You may award punitive damages only if you unanimously find from

facts established by a preponderance of the evidence that the conduct of

the defendant was, in fact, outrageous.

‘‘The law does not require you to award punitive damages. It is instead

a matter for your sound discretion. An award of punitive damages or any

award of damages, for that matter, must not reflect bias, prejudice or sympathy with respect to any party. It must instead be fairly based on the evidence

in this case.

‘‘Pursuant to statute, punitive damages may be awarded in a Product

Liability Act case if the plaintiff proved by a preponderance of the evidence

that the harm suffered was the result of the product seller’s reckless disregard for the safety of product users, consumers or others who are injured

by the product.

‘‘If the jury determines that punitive damages should be awarded, the

court in its discretion shall determine the actual amount of such damages

in an amount not to exceed twice the damages awarded to the plaintiff.

‘‘You should consider the reprehensibility of the defendant’s conduct and

the actual harm suffered by the plaintiff, and you must unanimously find it

necessary for achieving the objectives of punitive damages that I have

described.’’

15 The interrogatory states: ‘‘Has the plaintiff R.I. Pools, Inc., proven by a

preponderance of the evidence its entitlement to punitive damages in that

you find that the defendant Paramount Concrete, Inc., acted with a reckless

disregard for the safety of product users, consumers or others who were

injured by the product? (If you find for the plaintiff as to punitive damages,

the court will determine the amount of any award).’’ The jury responded

to this interrogatory by inscribing a check mark on the line marked ‘‘Yes.’’

16 ‘‘In a typical general verdict rule case, the record is silent regarding

whether the jury verdict resulted from the issue that the appellant seeks to

have adjudicated. . . . Under the general verdict rule, if a jury renders a

general verdict for one party, and [the party raising a claim of error on

appeal did not request] 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. . . . Even in a case with a single count complaint, the general

verdict rule applies when reliance is placed upon grounds of action . . .

which are distinct, not because they involve specific sets of facts forming
a part of the transaction but in the essential basis of the right replied upon

. . . . [T]he general verdict rule would apply in a case in which a single

count of a complaint alleged both wanton misconduct and negligence. . . .

The applicability of the general verdict rule does not depend on the niceties

of pleading but on the distinctness and severability ofthe claims and defenses

raised at trial.’’ (Citations omitted; internal quotation marks omitted.)

Konesky v. Post Road Entertainment, 144 Conn. App. 128, 132–33, 72 A.3d

1152, cert. denied, 310 Conn. 915, 76 A.3d 630 (2013).

17 There was evidence presented at trial that such quality control measures

were integral to the proper manufacture and delivery of Shotcrete.

18 We observe, however, that there is no binding precedent on the issue

of whether the common-law punitive damages rule applies to an award of

statutory punitive damages under § 52-240b. See Bifolck v. Philip Morris,

Inc., United States District Court, Docket No. 3:06cv1768 (SRU) (D. Conn.

February 14, 2014) (order certifying question to Connecticut Supreme

Court).

19 See, e.g., General Statutes § 52-240a, which permits an award of attorney’s fees to the prevailing party in a product liability action upon a finding

by the court that a claim or defense made in connection with such action

is frivolous. The court was not asked to award such fees in the present

case, and it did not rely on § 52-240a in its award of damages.

20 ‘‘[T]he initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. . . . The courts may then adjust this

lodestar calculation by other factors. . . . For guidance in adjusting attorney’s fees, Connecticut courts have adopted the twelve factors set forth in

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir.

1974). The Johnson factors are (1) the time and labor required, (2) the

novelty and difficulty of the questions, (3) the skill requisite to perform the

legal service properly,(4)the preclusion of other employment by the attorney

due to acceptance of the case, (5) the customary fee for similar work in

the community,(6) whetherthe fee is fixed or contingent,(7)time limitations

imposed by the client or the circumstances, (8) the amount involved and

the results obtained, (9) the experience, reputation and ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the

professional relationship with the client and (12) awards in similar cases.’’

(Citation omitted; internal quotation marks omitted.) Ernst v. Deere & Co.,

supra, 92 Conn. App. 576; see also Laudano v. New Haven, 58 Conn. App.

819, 822–23, 755 A.2d 907 (2000).

21 In light of the foregoing, we agree with the defendant that the court

violated notions of basic due process by awarding punitive damages far in

excess of the attorney’s fees incurred by the plaintiff. It appears from the

record that the defendant lacked fair notice that the court could impose an

award that exceeded that permitted under the common law.