HARTFORD, Conn. (Legal Newsline) - A man who fell off a 6-foot retaining wall after a night of drinking in his local tavern lost his bid to win money from the city that built it, as the Connecticut Supreme Court upheld a jury verdict rejecting the plaintiff’s public nuisance claim.
Gregg Fisk entered the Lumberyard Pub in Redding, Conn., At 8:30 p.m. for dinner and drinks in August 2011, and left around 2 a.m. after consuming what he described as “approximately five beers.” He lived nearby, and instead of walking out of the parking lot exit, he climbed over a vehicle guardrail, walked through some underbrush and fell off a retaining wall the city had built next to Main Street.
Fisk sued the city, claiming the wall was a public nuisance because it didn’t have a fence to protect him from falling off of it. At the subsequent trial, the jury was asked to decide several questions, including whether the wall was inherently dangerous and whether the city’s use of the property was unreasonable. The jury answered yes to the first question and no to the second, entering a verdict for the City of Redding.
Fisk appealed, arguing the jury’s answers were fatally inconsistent, and an appeals court agreed, ordering a new trial. The appellate court found that as a matter of law, the jury couldn’t find the wall was inherently dangerous yet the city wasn’t making an unreasonable use of the land. One judge dissented, saying the jury had enough evidence to conclude the city’s use of the land didn’t constitute an “unreasonable interference with a right common to the general public.”
The Connecticut Supreme Court reversed the appellate decision, restoring the verdict in favor of Redding, in a soon-to-be-published opinion. In it, the court said the appeals court put too much weight on the jury’s determination that the wall was inherently dangerous, without giving credit to the evidence the jury also heard placing the city’s use of the property in a broader context.
The Connecticut Supreme Court started by observing that in order to set aside a verdict because of inconsistency in the jury’s answers, the court “has the duty to harmonize the answers.” Jurors had to answer each of four questions in favor of the plaintiff to win, the court said, and answering “no” to any one of them meant a verdict for the defense.
The appellate court concluded that the wall, minus a fence, served “no utility to either the defendant or the community,” the Supreme Court said. But the jury was entitled to consider other facts, such as the use the public made of the property, its location and surrounding features. The state’s high court previously found a 15-foot ledge in a public park didn’t constitute a public nuisance, for example, nor did a waterway in another park.
In this case, the jury heard that the plaintiff had to climb over a vehicle guardrail and walk through dense shrubbery to get to the wall. The town’s engineer testified a fence was “never discussed” because the guardrail was intended to protect pedestrians from getting close enough to the top of the wall to fall off of it.
“The jury was also presented with no evidence that any individual, including the plaintiff himself, had previously walked over the guardrail barrier, navigated through the dense landscaping, and fallen off the wall,” the court concluded.