Opinion
CV116023831S
12-13-2016
Elizabeth Muscio et al. v. Paul Kalinowski, Jr
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION TO SET ASIDE VERDICT AND FOR NEW TRIAL (#170)
Robin L. Wilson, J.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The plaintiffs, Elizabeth Muscio, Daniel Muscio and Brianna Muscio commenced this action by service of writ, summons and complaint against the defendant, Paul Kalinowski, Jr. The original complaint is dated September 12, 2011, with a return date of October 4, 2011. The case was returned to court on September 28, 2011. The plaintiffs alleged in their original complaint dated September 12, 2011, the following facts. The plaintiffs, Elizabeth Muscio and Brianna Muscio worked at the defendant Kalinowski's stables from approximately May 2009 to September 15, 2009. The plaintiff, Elizabeth Muscio's duties included, but were not limited to, cleaning farm grounds, mucking stalls, filling water buckets, feeding the horses, sweeping, cleaning saddles, watering the arena and turning out horses. The plaintiff was not paid for these services in cash or other equivalent, but was engaged in an agreement with Kalinowski to exchange for value by getting riding lessons and use of the stable animals after work was performed in sufficient quantity. The plaintiff had, as did her daughter and many other riders at the stables, a verbal agreement with the defendant to perform these duties and, in exchange, the plaintiff could ride a horse and receive lessons at no charge.
On September 15, 2009, plaintiff, Elizabeth Muscio performed her duties and, with the permission and specific direction of the defendant, took a recently gelded, chestnut quarter horse known as " Jolt" for a lesson to a padlock area as directed by the defendant. The horse Jolt was approximately three years old and was very unreliable, recently gelded, and a risky horse for any rider. Plaintiff was never informed that Jolt was recently gelded and she was unaware of the risks in riding him. The defendant, knowing that Jolt was recently gelded and not fully trained or trustworthy suggested she ride Jolt and did not inform the plaintiff of this prior to her riding him.
While the plaintiff was riding Jolt to the area directed by the defendant, two female horses trotted close by and Jolt reacted in a violent and dangerous manner and bucked uncontrollably causing the plaintiff to be hit in the face with the back of Jolt's head, which caused the plaintiff to be thrown into the air, landing on her face in the arena. The plaintiff, Brianna Muscio witnessed Jolt rearing and throwing her mother and injuring her. The plaintiff Brianna Muscio was traumatized from this accident which she observed and ran to the aide of her mother. As a result of being thrown from Jolt, the plaintiff Elizabeth Muscio lost consciousness and sustained severe injuries which required her hospitalization.
The original complaint is in three counts. Count one is as to Elizabeth Muscio and alleges that the defendant was negligent in that he failed to inform the plaintiff that the horse Jolt was recently gelded; failed to advise the plaintiff that the horse Jolt was an unreliable and testy horse; failed to properly advise plaintiff of proper techniques in saddling and tacking the horse before riding, in spite of plaintiff's inquiries about this; failed to properly advise the plaintiff of what to do if the horse became dangerous; failed to properly call for emergency medical personnel after the fall; failed to transport the plaintiff to the hospital in a manner reasonably calculated to prevent further injury and damages to the plaintiff and failed to seek immediate and qualified, emergency care for the plaintiff. Count two is a loss of consortium claim by the plaintiff, Elizabeth Muscio's husband, Daniel Muscio and count three is a negligent infliction of emotional distress/bystander emotional distress claim by the plaintiff's daughter Brianna Muscio.
The defendant in his original answer denied that he was negligent and raised the special defense of assumption of the risk pursuant to General Statutes § 52-557p. The defendant claimed that the plaintiff was a person who assumed the risk and legal responsibility for any injury to her person or property arising out of the hazards inherent in equestrian sports and that her injuries were not caused by the negligence of the person providing the horse or horses to the individual engaged in recreational equestrian activities or the failure to guard or warn against a dangerous condition, use, structure or activity by the person providing the horse or horses or his agents or employees. The defendant also raised the special defense of comparative negligence and alleged that the plaintiff's injuries were the result of her own negligence in that she failed to make proper use of her senses or faculties to avoid the injury and was not watchful.
Approximately four days into the trial, and almost five years after the filing of their original complaint, the plaintiffs requested leave to amend the original complaint. The plaintiffs requested to amend the complaint to add a number of allegations which were not included in their original complaint. The defendant strenuously objected to the majority of the plaintiffs' additional allegations. The court allowed the plaintiffs to amend their complaint to include those allegations which expanded on the allegations contained in the original complaint, however the court excluded those allegations which were never pled in the original complaint, and which were new allegations of negligence. The court also excluded allegations on which there was no evidence submitted to the jury.
Jury selection began on July 7, 2016. The jury heard evidence over a period of eight days, from July 13 through July 21 and on July 22, 2016, the jury returned a verdict for the defendant. On August 1, 2016, the plaintiffs filed a motion to set aside the verdict and for a new trial, and on August 10, 2016, the defendant filed an objection to the motion. Oral argument was heard on the motion at short calendar on September 19, 2016.
DISCUSSION
I
Motion For New Trial
" A motion for a new trial is addressed to the sound discretion of the trial court and will never be granted except on substantial grounds." (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 98, 956 A.2d 1145 (2008) . . ." The basic question which the trial court has to decide is whether upon all the evidence an injustice has been done." Burr v. Lichtenheim, 190 Conn. 351, 355, 460 A.2d 1290 (1983).
The grounds upon which a trial court may award a new trial is set forth in General Statutes § 52-270 (" Causes for which new trials may be granted"). In particular, § 52-270(a) allows the trial court to grant a new trial in an action which has been heard before the court for the following reasons: " mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases."
In the present case, the ground of " for other reasonable cause" is ostensibly the only ground set forth by the plaintiffs which might apply under the express provisions of § 52-270; there has been no contention by the plaintiffs of newly discovered evidence, mispleading, or want of notice in the underlying action. However, our Supreme Court has stated that " [a]lthough . . . § 52-270 permits the court to grant a new trial upon proof of reasonable cause, the circumstances in which reasonable cause may be found are limited . . . The basic test of reasonable cause is whether a litigant, despite the exercise of due diligence, has been deprived of a fair opportunity to have a case heard on appeal . . . A new trial may be granted to prevent injustice in cases where the usual remedy by appeal does not lie or where, if there is an adequate remedy by appeal, the party has been prevented from pursuing it by fraud, mistake or accident." (Internal quotation marks omitted.) Murphy v. Zoning Board of Appeals, 86 Conn.App. 147, 152-53, 860 A.2d 764 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1080 (2005). Thus, " [§ 52-270] does not furnish a substitute for, nor an alternative to, an ordinary appeal, but applies only when no other remedy is adequate and when in equity and good conscience relief against a judgment should be granted." (Internal quotation marks omitted.) Jacobs v. Fazzano, 59 Conn.App. 716, 724, 757 A.2d 1215 (2000). Here, the plaintiffs have not cited to any evidence that would meet the reasonable cause test as enunciated above. Accordingly, the court does not find good cause to grant the plaintiffs a new trial and therefore the plaintiffs' motion for a new trial is denied.
The phrase " other reasonable cause" has also been construed to include " any cause, legal or equitable, seeking a new trial for reasons other than those specifically mentioned in the statute." E. Stephenson, Connecticut Civil Procedure, (3d Ed.2002) Vol. II, Sec. 202(b)(f), 450-52, citing Perry v. M. M. Puklin Co., 100 Conn. 104, 110, 123 A. 28 (1923).
II
Motion to Set Aside
When presented with a motion to set aside a verdict, " the [trial] court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict." (Internal quotation marks omitted.) Cheryl Terry Enters. v. City of Hartford, 270 Conn. 619, 639, 854 A.2d 1066 (2004). " 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." (Internal quotation marks omitted.) Lachira v. Sutton & Sutton Esquires, 143 Conn.App. 15, 19, 68 A.3d 1177, cert. denied, 68 A.3d 1177, 143 Conn.App. 15 (2013). " The verdict will be set aside and judgment directed only if [the court] find[s] that the jury could not reasonably and legally have reached their conclusion." (Internal quotation marks omitted.) Smith v. Greenwich, 278 Conn. 428, 441, 899 A.2d 563 (2006). " If the jury, without conjecture, could not have found a required element of the cause of action, it cannot withstand a motion to set aside the verdict." (Internal quotation marks omitted.) Glazer v. Dress Barn, Inc., 274 Conn. 33, 50, 873 A.2d 929 (2005).
Appellate courts considering a trial court's ruling on a motion to set aside apply a " deferential scope of review . . ." Margolin v. Kleban & Samor, P.C., 275 Conn. 765, 773, 882 A.2d 653 (2005). The Appellate Court's " review of the trial court's action on a motion to set aside the verdict involves a determination of whether the trial court abused its discretion, according great weight to the action of the trial court and indulging every reasonable presumption in favor of its correctness." (Internal quotation marks omitted.) Lachira v. Sutton & Sutton Esquires, supra, 143 Conn.App. at 22. " The court's refusal to set aside a verdict is entitled to great weight, and every reasonable presumption should be indulged in favor of its correctness." (Internal quotation marks omitted.) Fisher v. Zborowski, 83 Conn.App. 42, 52, 847 A.2d 1057 (2004). " Our review of a trial court's decision denying a motion for a directed verdict, or refusing to set aside a verdict, requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony." (Internal quotation marks omitted.) Kervick v. Silver Hill Hospital, 309 Conn. 688, 717, 72 A.3d 1044 (2013). " 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.) Edmands v. CUNO, Inc., 277 Conn. 425, 453, 892 A.2d 938 (2006).
The plaintiffs have moved to set aside the verdict on several grounds. The plaintiffs claim that the verdict and answers to the interrogatories are against the weight of the evidence; that the trial court improperly excluded plaintiffs' evidence as to obvious safety measures such as providing and requiring the wearing of a proper, fitting safety helmet and/or protective vest; that the trial court erred in denying the plaintiffs to amend the complaint to insert the term " traumatic brain injury" and restricted provision of evidence in this regard to a " head injury"; that the court's jury instructions regarding the application of General Statutes § 52-557p was erroneous because it was too harsh and improperly conclusive in its statement concerning the language regarding assumption of the risk in the statute; that the court erred in denying the plaintiffs the opportunity during trial to question the defendant as an adverse party, using leading questions; that the court erred in denying the plaintiffs an opportunity during trial to introduce evidence of a photograph of the horse Jolt taken immediately after the incident occurred which would have allowed the jury to determine its relative size and physical capabilities by seeing its physical structure; that the court erred in accepting this case due to time constraints. The court will address each ground in turn.
A
Jury Verdict and Interrogatories
The plaintiffs claim that the jury verdict and interrogatories are against the weight of the evidence. The plaintiffs claim that the jury's finding that the plaintiff, Elizabeth Muscio was more negligent than the defendant is not supported by the evidence. More specifically, the plaintiffs claim that the duty of the defendant was to prove by a preponderance of the evidence that his special defense of comparative negligence was applicable. The plaintiffs contend that no such evidence of the plaintiff Elizabeth Muscio's claimed negligence was produced at trial. However, the plaintiffs overlook the fact that in responding to jury interrogatory number two, the jury found that the plaintiff, Elizabeth Muscio had not proved that the negligence of the defendant was a proximate cause of her injuries. The fact that the defendant may have admitted during his testimony that he was negligent is not inconsistent with the jury's verdict, because it determined that while the defendant was negligent, his negligence was not a proximate cause of the plaintiffs injuries.
" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury" Sic v. Nunan, 307 Conn. 399, 406, 54 A.3d 553 (2012).
" 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.' Hoelter v. Mohawk Service, Inc., 170 Conn. 495, 501, 365 A.2d 1064 (1976). After the plaintiff establishes that the defendant did not exercise reasonable care, the plaintiff has the burden of proving that the defendant's negligence caused the plaintiff's injuries. To do so, the plaintiff first must establish causation in fact, that is, that the injury would not have occurred but for the actor's conduct. See, e.g., Winn v. Posades, supra, at 56, 913 A.2d 407. The plaintiff then must show proximate cause. Id. Proximate cause requires that 'the defendant's conduct [was] a substantial factor in bringing about the plaintiff's injuries' and that there was 'an unbroken sequence of events that tied [the plaintiff's] injuries to the [defendant's conduct].' (Internal quotation marks omitted.) Id. Proximate cause does not require the plaintiff to 'remove from the realm of possibility all other potential causes of the accident . . .' Hicks v. State, supra, 287 Conn. at 438, 948 A.2d 982. Instead, the plaintiff must 'establish that it is more likely than not that the cause on which the plaintiff relies was in fact a proximate cause of the accident.' (Emphasis added.) Id. The more likely than not standard ensures that the 'causal connection . . . [is] based [on] more than conjecture and surmise.' (Internal quotation marks omitted.) Winn v. Posades, supra, at 57, 913 A.2d 407.
" A plaintiff can prove the elements of negligence using either direct or circumstantial evidence. See, e.g., State v. Heinz, 193 Conn. 612, 625, 480 A.2d 452 (1984) ('[t]here is no distinction between direct and circumstantial evidence so far as probative force is concerned'). Circumstantial evidence is 'evidence of facts from which the trier is asked to infer the existence of, and, so, to find proven, another fact or [set of] facts.' Hennessey v. Hennessey, 145 Conn. 211, 214, 140 A.2d 473 (1958). Circumstantial evidence 'need not be so conclusive as to exclude every other hypothesis.' Blados v. Blados, 151 Conn. 391, 395, 198 A.2d 213 (1964). Rather, circumstantial evidence must only '[produce] in the mind of the trier a reasonable belief in the probability of the existence of the material fact.' Id. " Rawls v. Progressive Northern Ins. Co., 310 Conn. 768, 776-78, 83 A.3d 576.
In the present case, once the jury determined that the defendant's negligence was not a proximate cause of the plaintiff's injuries, they should have concluded their work and entered a verdict for the defendant as instructed on the interrogatory form. However, the jury went on and responded to interrogatories three through five finding that the defendant had proved that the plaintiff was negligent, her negligence was the proximate cause of her injuries and that the plaintiff's negligence was greater than 50%. The court agrees with the defendant that the jury's responses to these questions were ultimately not relevant because the jury had already concluded that the plaintiff had failed to meet her burden of establishing that the defendant's negligence was a proximate cause of her injuries. Although it was not necessary for the jury to proceed to answer the interrogatories regarding whether the defendant had proven that the plaintiff herself was negligent, there was sufficient evidence from which the jury could have reasonably concluded that the plaintiff was negligent in one or more of the ways alleged in the defendant's special defense, and was more negligent than the defendant.
In its special defense, the defendant alleged that the plaintiff was negligent in one or more of the following ways: In that she failed to keep and maintain a proper lookout; in that she failed to make reasonable and proper use of her senses and her faculties; in that she failed to take the necessary and proper precautions to observe the conditions then and there existing; in that she failed to be watchful of her surroundings; and in that she failed to use reasonable care for her own safety commensurate with the existing circumstances and conditions.
The jury could have reasonably concluded from the following testimony, that the plaintiff was familiar with horses and had experience in horseback riding, and that she had knowledge of the dangers and risks associated with horses and horseback riding such that, she should have exercised the care that a reasonably prudent person would have by taking the necessary and proper precautions to observe the conditions then and there existing; she should have been watchful of her surroundings; and she should have used reasonable care for her own safety commensurate with the existing circumstances and conditions; all of which she failed to do.
The plaintiff in her testimony tried to minimize and downplay her knowledge of horses and experience with horses and horseback riding. The jury, which they are in entitled to do, simply did not find her testimony in this regard credible. The jury could have reasonably concluded from the evidence submitted, that the plaintiff's knowledge about horses and horseback riding was more extensive than that which she testified to. From the following testimony, the jury could have reasonably concluded that the plaintiff was knowledgeable about horses, knew how to ride a horse, including tacking and cleaning and saddling a horse, and was very aware of the risks and dangers associated with horses and horseback riding.
At the age of 18 or 19 years old the plaintiff co-owned a horse for approximately two years with her then boyfriend. The plaintiff rode the horse, took care of the horse and would ride the horse in an outdoor arena with her boyfriend. The plaintiff's boyfriend participated in rodeos with the horse as a " steer roper" to which the plaintiff would attend and would observe her boyfriend steer rope the horse they co-owned. She observed him warm up the horse, get on the horse and steer rope the horse. The plaintiff also knew how to saddle the horse, and her boyfriend taught her how to hold the reins, and how to keep her feet in the stirrups. The plaintiff testified that she would warm up the horse before riding and that she knew when a horse was " tuckered out" or tired after having been ridden for an extended period of time.
Prior to graduating from high school, the plaintiff went horseback riding on a trail two times in Prospect, Connecticut with her brother and sister. The plaintiff acknowledged that prior to the trail ride, she was given instructions on how to ride the horse.
During the time that the plaintiff's daughter received riding lessons from the defendant, there were many times that the plaintiff was present, and she would hear the defendant provide instructions to her daughter. The plaintiff told many people, including the defendant that she loved horses. In addition, the plaintiff told the defendant that she was familiar with horses and horseback riding.
The plaintiff's daughter, Brianna Muscio started working on the defendant's farm in March 2009. Brianna would work for the defendant cleaning and feeding the horses and the stalls in exchange for a lesson on horseback riding. She worked two days a week, on Tuesdays and Saturdays to get a lesson. Brianna worked with several other girls, close in age, who the defendant was also training in exchange for working on the farm. It was not until May 2009, that the plaintiff began to work for the defendant in exchange for riding. The plaintiff testified that she did not take lessons from the defendant, but that she would color his hair and be the " barn mother" to the girls, in exchange for having the privilege of riding.
Prior to the accident, Jolt was the first horse the plaintiff rode at the defendant's farm. The plaintiff's first time riding Jolt was during a group lesson the defendant was giving to the girls he was training on the farm. The girls, Brianna Muscio, and the plaintiff Elizabeth Muscio participated in the group lesson inside the indoor arena. An obstacle course which consisted of a little bridge, cones and a small puddle was set up in the arena and the defendant was instructing the girls, Brianna and the plaintiff on how to ride through the obstacle course. The plaintiff rode Jolt for about half an hour. While riding Jolt, the plaintiff chose not to wear a helmet because she believed that she did not need a helmet. The defendant had a place on the farm where the helmets were kept, and no one prohibited the plaintiff from wearing a helmet. All of the girls who were under the age of 18 and who rode that day wore a helmet.
During the plaintiff's half hour ride on Jolt, through the obstacle course, the defendant instructed the plaintiff to trot down to the end of the obstacle course. Located at the end of the obstacle course was a wall. The plaintiff was unable to get Jolt to move and so the defendant told her to kick him. Instead of kicking Jolt with one leg, the plaintiff kicked him with both legs and " goosed" him which caused him to take off and run to the wall. The plaintiff was able to stop Jolt by " yelling whoa, " " pulling back on the reins" and " tightening her legs around him." At this point, the plaintiff did not get off the horse, she remained on Jolt and completed the ride.
After this ride with Jolt, the plaintiff rode again on the defendant's farm, on a horse by the name of Arrow. The plaintiff chose to ride Arrow. The plaintiff rode Arrow on a trail ride and was at the end of the trail. The ride went fine until the end when they started to go down to the barn, at which point Arrow " just wanted to go home" and took off toward the barn. The plaintiff was able to hold onto Arrow without any problems. The defendant testified that he heard the story about Arrow from the plaintiff and that she bragged to him about how Arrow ran away with her and he asked if she fell off and she boasted that she did not fall off, that she wrapped her legs around him and galloped back to the barn. The defendant testified that after he heard the story from the plaintiff about Arrow, he had a different respect for the plaintiff because she was boasting about how she was able to remain on the horse without falling off.
The defendant testified that the plaintiff told him that she owned a horse and would say things like, " of course I know how to do that, I've ridden for years, " " can I use Brandon, I'm going to ride with Brianna, " " of course I know what I'm doing, I've been doing this a long time." The defendant, who is the owner of the stables where the plaintiff was injured, and who owns and has owned many horses for many years testified that when a person tells you that they owned a horse, you think, " wow they owned a horse . . . obviously if they owned a horse they know how to put a halter on, a bridle on, put a saddle on, keep it clean, they owned a horse, [owning a horse] carries a substance of ownership: they use the horse, they ride the horse, so who was [he] to question the [plaintiff] when the [plaintiff] told him that she owned a horse." (Emphasis added.) F.T.R., 7/15/2016. The defendant further testified that Brandon was an older horse that the plaintiff would ask to ride with her daughter. The defendant testified that there were no problems when she rode Brandon. The defendant also testified that the plaintiff rode horses on his farm more than just on three occasions. Id.
The plaintiff rode Jolt, for a second time on September 15, 2009, the day of the incident. The ride started when Amanda Gagne, one of the girls who also worked on the farm in exchange for riding lessons, asked the defendant if she and the plaintiff's daughter Brianna could ride. The defendant testified that he gave them permission to ride. The defendant further testified that he asked who was riding and Amanda responded that she, Brianna and Liz [the plaintiff]. The defendant further testified that since the plaintiff had rode before, and because the defendant preferred that an adult be present for supervision when the kids rode, he had no objection to the plaintiff riding with Amanda and Brianna. The defendant also testified, contrary to the plaintiff's testimony, that it was the plaintiff who chose to ride Jolt and that he did not choose Jolt for the plaintiff to ride.
In preparation for the ride, Amanda testified that she, Brianna and the plaintiff each got their own horses out of the stalls. Amanda was riding Stitch, Brianna was riding Jaguar and the plaintiff was riding Jolt. She testified that the indoor arena is attached to a barn, and in the aisle of the barn there is a special room where the tacking gear is kept to prepare for riding. All of the tacking gear, i.e., saddles, bridles and helmets are kept in the special room. Contrary to the plaintiff's testimony, Amanda testified that they all tacked their own horses by brushing the horses and putting on the saddle pads and saddles. Amanda did not select the tacking gear for Jaguar or Jolt. Nor did she select the saddle, or bridle for Jaguar or Jolt. Amanda tacked her own horse, by brushing her, picking the dirt out of her hoofs, putting the saddle pad and saddle on, and putting her bridle on. Amanda also testified that no one, other than herself, Brianna, and the plaintiff were in the tacking room.
After tacking their horses all three went into in the indoor arena where the plaintiff, Brianna and Amanda Gagne warmed up the horses and rode inside the indoor arena for a period of time. Afterwards, the three decided to go outside up to the outdoor arena. No one directed them to go to the outside arena, they decided that because it was a nice day, they would ride outside. There was also some testimony from the defendant that in passing the plaintiff before she was about to ride Jolt, he observed that the length of the stirrups might be improper and that the plaintiff should correct them, however, she did not change the length of the stirrups but proceeded to ride.
When the three got to the outside arena, Amanda and Brianna went into the arena first, and the plaintiff went in behind them. Amanda and Brianna started warming up their horses. The plaintiff took Jolt and circled him a couple of times in the arena, by walking and trotting him. She then circled him in the other direction, backed him up to tell him he was doing good. The plaintiff leaned over to pat Jolt on his neck to tell him that he was a good boy, " [she] looked up when the girls ran in front [of her]", and " that's when [he brought his head up and] hit her in the cheek", which knocked her to the ground. F.T.R., July 14, 2016, 11:42:36-11:42:53 a.m.
There was sufficient evidence from which the jury could reasonably conclude, that prior to the accident on September 15, 2009, the plaintiff owned a horse, knew how to ride a horse was familiar with tacking and saddling a horse and was familiar with the risks associated with horses and horseback riding. There was sufficient evidence from which the jury could reasonably conclude that on the day of the incident, the plaintiff chose Jolt, tacked Jolt by brushing him and saddling him, and chose to ride him, first in the inside arena and then in the outside arena along with Brianna and Amanda. Furthermore, notwithstanding the incident the plaintiff had with Jolt the first time she rode him, and notwithstanding the incident she had with Arrow, and notwithstanding the plaintiff's knowledge of the risks associated with horseback riding, the plaintiff again chose to ride Jolt for the second time, on September 15, 2009. Thus, there was sufficient evidence from which the jury could have reasonably concluded that the plaintiff failed to exercise the care that a reasonably prudent person would have by taking the necessary and proper precautions to observe the conditions then and there existing before riding Jolt; she should have been watchful of her surroundings, before riding Jolt; and she should have used reasonable care for her own safety commensurate with the existing circumstances and conditions, before riding Jolt which she failed to do. Thus, there was sufficient evidence from which the jury reasonably could have concluded that the plaintiff herself was negligent. Further, the evidence from which the jury could have concluded that the plaintiff herself was not watchful of her surroundings, comes from the plaintiffs own testimony wherein she describes the incident. The plaintiff testified that she leaned over to pat Jolt, and then she looked up when the girls ran in front of her, and that's when he brought his head up and hit her in the cheek. The jury could have reasonably inferred from this description that the plaintiff's attention was drawn from Jolt, to the girls who ran in front of her, and thus, she was not being watchful of her surroundings. Finally, there was no evidence from which the jury could conclude that either the saddle, lack of a helmet or safety vest or the stirrups caused the plaintiff's injuries on the day of the incident.
There was also evidence from which the jury reasonably could have concluded that the plaintiff's injuries resulted from the hazards inherent in equestrian activities and not as a result of the defendant's negligence. The defendant raised the defense of assumption of the risk pursuant to General Statutes § 52-557p. The defendant claimed that falling from a horse, as the plaintiff did in the present case, was a hazard inherent in equestrian sports, and therefore, as per § 52-557p she must assume the risk of those hazards. There was evidence presented at trial from which the jury could have reasonably concluded that the plaintiff's injuries were caused by the hazards inherent in horseback riding, and therefore pursuant to § 52-557p the plaintiff assumed the risk of those hazards. There was evidence that the plaintiff owned a horse and had experience riding a horse and had instances in the past when a horse did not follow her commands. Thus, there was evidence from which the jury could have reasonably concluded that the plaintiff was familiar with horses and had knowledge of the risks associated with horseback riding. The plaintiff acknowledged that she was the person in charge of Jolt when she was injured on September 15, 2009, while riding him. The plaintiff also chose to ride Jolt.
There was evidence from which the jury could have reasonably concluded that the plaintiff was injured when Jolt, raised his head and struck the plaintiff when the plaintiff was leaning over toward his neck to pat him. The plaintiff's own expert testified that it was impossible to determine why this occurred. She testified that it could have been a fly on the horse, a bee on the horse or it could have been the fact that a horse is a horse and that's what horses do. The expert acknowledged that there was no way for anyone to anticipate that the horse would raise its head as it did. The expert did not have any evidence that the defendant was training or instructing the plaintiff on the day the plaintiff was injured, therefore the expert could not opine that the tacking or saddling or stirrups had anything to do with the horse raising its head. The evidence therefore supports a conclusion that the raising of Jolt's head was the kind of hazard and or risk inherent in horseback riding sports that caused the plaintiff's injuries, and for which the plaintiff, in accordance with § 52-557p, must assume the risk. Thus, the jury's finding in favor of the defendant was reasonable when considering this evidence in light of § 52-557p.
Based on the evidence that was submitted, the jury could have reasonably concluded the following: 1) that the plaintiff did not prove that her injuries were the proximate cause of the defendant's negligence, 2) that the plaintiff's injuries resulted from the inherent risks associated with horseback riding for which she assumed the risk; or b) that the plaintiff's own negligence caused her injuries. Because it is apparent that there was some evidence on which the jury reached its verdict, the plaintiffs' motion to set aside the verdict based on this ground is denied.
B
Evidentiary Rulings
(i)
Safety Measures
The plaintiffs claim that the court improperly excluded their evidence as to safety measures, specifically the defendant's alleged failure to provide and require the wearing of a safety helmet and/or protective vest. The plaintiffs attempted to introduce this evidence through their expert. " A trial court's ruling on the admissibility of evidence is entitled to great deference . . . [T]he trial court has broad discretion in ruling on the admissibility . . . of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion . . . We will make every reasonable presumption in favor of upholding the trial court's ruling . . . Moreover, evidentiary rulings will be overturned on appeal only where there was . . . a showing by the [plaintiff] of substantial prejudice or injustice." (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 109, 956 A.2d 1145 (2008).
As this court previously noted, approximately four days after the trial had commenced, and almost five years after the plaintiffs filed their original complaint, the plaintiffs sought leave to amend their complaint to add a number of allegations. The defendant strenuously objected to a number of the plaintiffs' requested allegations, and after hearing argument, the court granted the plaintiff leave to amend the complaint to include those allegations which expanded on allegations contained in the original complaint and denied plaintiffs' request to add allegations that were new allegations and allegations for which there was no evidence submitted to the jury. One of the allegations excluded by the court was the plaintiffs' claim that the defendant failed to provide and require the plaintiff to wear a proper, fitting safety helmet and/or protective vest.
" The purpose of supplemental pleading 'is to promote as complete an adjudication of the dispute between the parties as is possible.' 6A C. Wright, A. Miller & M. Kane, supra, § 1504, p. 177. Nonetheless, the newly raised matter should not be entirely unrelated to the existing allegations. Although 'a party may assert separate or additional claims or defenses arising after commencement [of the action] . . . the courts typically require some relationship between the original and the later accruing material.' Id., p. 183; see, e.g., Keith v. Volpe, 858 F.2d 467, 474 (9th Cir. 1988) (finding adequate relationship between original action concerning state's provision of adequate replacement housing for persons displaced by freeway construction as condition of construction and later, supplemental pleading contesting city zoning entities' refusal to approve housing developments intended to provide such replacement housing), cert. denied sub nom. Hawthorne v. Wright, 493 U.S. 813, 110 S.Ct. 61, 107 L.Ed.2d 28 (1989). In deciding whether to permit supplementation, a court first should decide 'whether the supplemental facts connect [the supplemental pleading] to the original pleading.' (Internal quotation marks omitted.) Weeks v. New York, 273 F.3d 76, 88 (2d Cir. 2001). If there is a relationship between the two pleadings, the court should permit the requested supplementation if it 'will promote the economic and speedy disposition of the controversy between the parties, will not cause undue delay or trial inconvenience, and will not prejudice the rights of any other party.' Bornholdt v. Brady, 869 F.2d 57, 68 (2d Cir. 1989); see also Practice Book § 10-60(b); Weeks v. New York, supra, at 88." Town of New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 484-85, 970 A.2d 592 (2009).
Moreover, " [i]t is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated." (Emphasis added; internal quotation marks omitted.) Miller v. Fishman, 102 Conn.App. 286, 299, 925 A.2d 441 (2007), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008).
Examples of what constitutes a new and different factual situation as opposed to an amplification or expansion abound. In Sandvig v. A. Dubreuil & Sons, Inc., 68 Conn.App. 79, 85-86, 789 A.2d 1012 (2002), it was held that an allegation of negligence claiming that a defendant actively damaged a tiled floor required a " different factual predicate" than an allegation that a defendant failed to repair already defective tiles. In Sandvig, the court stated: " The original complaint alleged that the defendant negligently failed to finish the floor in the area by the ramp. The proposed amended complaint alleged that the defendant negligently damaged the tiles when it installed the ramp. To prove that the defendant actively damaged the tiles requires a different factual predicate than to prove that the defendant failed to repair already damaged or exposed tiles. Because the plaintiff must prove a different set of facts, the amendments constitute new and different causes of action, and, therefore, do not relate back to the original complaint." Id.
In Patterson v. Szabo Food Service of New York, Inc., 14 Conn.App. 178, 540 A.2d 99, cert. denied, 208 Conn. 807, 545 A.2d 1104 (1988), the plaintiff attempted to amend his complaint to reflect additional negligence allegations. The original complaint alleged that the defendant had failed to clean a floor on which the plaintiff fell and sustained injuries. The amended complaint, however, alleged that the defendant created the dangerous condition. The Appellate Court concluded that " the substitute complaint presents a new and different factual situation from that stated in the original complaint and that it therefore states a new and different cause of action." Id., 183.
In the present case, the plaintiff in its original complaint alleged that the defendant " a) failed to inform the Plaintiff that the horse, Jolt was recently gelded; b) failed to advise the Plaintiff that the horse, Jolt, was an unreliable and 'testy' horse; c) failed to properly advise Plaintiff of proper techniques in saddling and tacking the horse before riding, in spite of Plaintiff's inquiries about this; c) failed to properly advise Plaintiff of what to do if the horse became dangerous; d) failed to properly call for emergency medical personnel after the fall; e) failed to transport Plaintiff to the hospital in a manner reasonably calculated to prevent further injury and damages to Plaintiff; [and] f) failed to seek immediate and qualified, emergency care for Plaintiff. In the amended complaint, the plaintiff alleged, inter alia, that the defendant " failed to prevent the Plaintiff Elizabeth Muscio from riding in spite of the fact that the defendant Kalinowski was well aware that she was not properly tacked up, and was riding without a helmet or a chest protector."
Nowhere in the original complaint does the plaintiff allege that the defendant failed to provide and/or require the plaintiff to wear a proper fitting safety helmet and/or protective vest. To prove that the defendant failed to provide and/or require the plaintiff to wear a safety helmet and/or protective vest at the time she was riding Jolt, requires a different factual predicate than what is required to prove the allegations of negligence set forth in the original complaint. To prove the defendant's failure to provide a proper fitting safety helmet and/or protective vest would require different evidence, such as the size and type of the equipment that is required, and whether the size and type of equipment changes with the type of the equestrian activity one may be engaged in, 'or is the equipment standard equipment for all equestrian activities. Such evidence, as indicated by the plaintiffs' attempt to question their own expert on this issue, would require testimony from an expert for which the defendant was not put on notice.
Thus, because the plaintiffs must prove a different set of facts, the amendment constitutes new allegations of negligence, and, therefore, do not expand on the allegations of negligence contained in the original complaint. It was therefore appropriate for the court to deny the plaintiffs' request to include the allegation that the defendant failed to provide the plaintiff with a proper fitting safety helmet and/or chest protector. Furthermore, there was no probative value to this evidence because the plaintiff failed to provide any evidence that the use of the equipment would have done anything to lessen the plaintiff's injuries.
Having sustained the defendant's objection to the plaintiffs' requested amendment, the court therefore, properly excluded any expert evidence as to safety measures such as providing and requiring the wearing of a safety helmet and/or protective vest.
" Pleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them . . . The purpose of a complaint or counterclaim is to limit the issues at trial, and such pleadings are calculated to prevent surprise . . . Moreover, [t]he principle that a plaintiff may rely only upon what he has alleged is basic . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint . . . What is in issue is determined by the pleadings and these must be in writing . . . Once the pleadings have been filed, the evidence proffered must be relevant to the issues raised therein . . . A judgment upon an issue not pleaded would not merely be erroneous, but it would be void." (Citations omitted; internal quotation marks omitted.) Foncello v. Amorossi, 284 Conn. 225, 233, 931 A.2d 924 (2007). Since the plaintiff's original complaint did not contain any allegations that the defendant failed to provide and/or require the plaintiff to wear a proper fitting safety helmet and/or protective vest, the court properly excluded evidence on this issue. Accordingly, the motion to set aside the verdict on this ground is denied.
(ii)
Evidence of Traumatic Brain Injury
The plaintiff further claims that the court erred in not allowing her to make reference to a " traumatic brain injury." Although the plaintiff alleged a traumatic brain injury in the original complaint, the court restricted the plaintiff in the use of the term " traumatic brain injury" before the jury because there was no medical evidence introduced that the plaintiff was diagnosed with a " traumatic brain injury" . There was no evidence that the plaintiff was treated by a neurologist or neuropsychologist for a traumatic brain injury. However, the court did allow the plaintiff to use the term " head injury" since the medical reports introduced by the plaintiff referenced a " head injury" . " The trial court should not submit an issue to the jury that is unsupported by the facts in evidence." State v. Adams, 225 Conn. 270, 283, 623 A.2d 42 (1993). " Jury instructions should be confined to matters in issue by virtue of the pleadings and evidence in the case . . . It is error to submit a specification . . . to the jury in respect to which no evidence has been offered." (Citation omitted.) Mack v. Perzanowski, 172 Conn. 310, 313, 374 A.2d 236 (1977)." Gombos v. Aranoff, 53 Conn.App. 347, 355, 730 A.2d 98 (1999). Accordingly, it was not improper for the court to restrict the plaintiff from referencing the term " traumatic brain injury" when there was no medical evidence of a traumatic brain injury. The motion to set aside based on this ground is therefore denied.
(iii)
Photographs
The plaintiffs claim that the court erred in denying them the opportunity during trial to introduce evidence of a photograph of the horse, Jolt taken immediately after the incident. " All relevant evidence is admissible except as provided by the federal or state constitutions or Connecticut statute. Conn.Code Evid. § 4-2. 'Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue . . . [E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree.' (Internal quotation marks omitted.) United Techs. Corp. v. Town of E. Windsor, 262 Conn. 11, 29, 807 A.2d 955 (2002). The fact that evidence may be subject to several interpretations does not affect its admissibility as long as it can be construed as relevant. State v. Sanchez, 69 Conn.App. 576, 584, 795 A.2d 597 (2002).
However, " [t]he court may exclude relevant evidence when its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues or misleading the jury. Conn.Code Evid. § 4-3. Unfair prejudice is that which 'unduly arouse[s] the jury's emotions of prejudice, hostility or sympathy . . .' (Citation omitted; internal quotation marks omitted.) Ancheff v. Hartford Hospital, 260 Conn. 785, 804, 799 A.2d 1067 (2002). In other words, the evidence must create undue prejudice so that it would perpetuate the possibility of an injustice were it to be admitted. C. Tait, Connecticut Evidence (3d Ed.2001) § 4.8.1, pp. 208-09. The evidence must be unfair in those respects because '[a]ll evidence adverse to a party is, to some degree, prejudicial.' (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 806, 614 A.2d 414 (1992).
" That balancing test requires the court to weigh the probative value of the proffered evidence against the harm that is likely to result from its admission. See Farrell v. St. Vincent's Hospital, 203 Conn. 554, 563, 525 A.2d 954 (1987). That determination is left to the discretion of the court. See State v. Ferguson, 260 Conn. 339, 351, 796 A.2d 1118 (2002)." Jenkins v. Kos, 78 Conn.App. 840, 843-44, 845, 829 A.2d 31 (2003).
The plaintiffs are correct that they are entitled to introduce photographs that have been properly authenticated, and that are relevant and material to the issues in the case. The first photograph that the plaintiffs attempted to introduce is exhibit 11, which is a picture of Jolt with several of the girls, including the plaintiff Brianna, who worked at the defendant's stables. The plaintiff, Elizabeth Muscio testified that the picture is a card that was made by the girls and the defendant which was sent to her while she was in the hospital. The photograph also depicts a statement that says: . . . and she will return to the land that I have sent her. Hurry back . . ." While the plaintiffs claim that this picture was admitted to show Jolt's size, it was clear that the purpose of the introduction of the picture was to invoke sympathy from the jury. The plaintiffs had every opportunity to obtain a picture of Jolt alone to depict his size and did not. As the court previously noted, " relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence." Connecticut Evidence Code § 4-3. Clearly any claimed probative value of the photograph was outweighed by the prejudicial impact the photograph would have had on the jury.
The plaintiff also attempted to introduce exhibit 13 which is a photograph showing eleven horses each of which had a child standing on top of the horse. This photograph had no purpose but to inflame the jury by suggesting that the defendant was running an unsafe operation by allowing children to stand on the backs of horses. Again, the court ruled that any claimed probative value of the photograph was outweighed by the prejudicial impact it would have had on the jury. " The primary responsibility for conducting the balancing test to determine whether the evidence is more probative than prejudicial rests with the trial court, and its conclusion will be disturbed only for a manifest abuse of discretion . . ." State v. James G., 268 Conn. 382, 396, 844 A.2d 810 (2004). Here, the court properly determined that the probative value of the photographs was outweighed by the prejudicial effect they would have had on the jury. The plaintiffs' motion to set aside the verdict based on this ground is denied.
C
Hostile/Adverse Witness
The plaintiffs called the defendant as their own witness in their case in chief. During direct examination, counsel for the defendant objected to plaintiffs' counsel's questions on the basis that counsel's questions were leading. Counsel for the plaintiff indicated to the court that the defendant was an adverse party pursuant to General Statutes § 52-178, and requested the court to declare the defendant as an adverse witness. The court initially denied counsel's request and directed him not to lead the witness. The court shortly thereafter, declared the witness as an adverse witness and permitted plaintiffs' counsel to ask leading questions.
The plaintiffs claim that the court erred in denying the ability of plaintiffs' counsel to question the adverse party, defendant Kalinowski, as an adverse witness with the use of leading questions. " It is axiomatic that trial courts have broad discretion to allow leading questions on direct examination depending upon the circumstances of the individual case. Wright v. Blakeslee, 102 Conn. 162, 168, 128 A. 113 (1925)." Fonsworth v. Sudol, 19 Conn.App. 368, 370, 562 A.2d 578 (1989). Pursuant to § 6-8(b) of the Connecticut Code of Evidence, " [l]eading questions shall not be used on the direct or redirect examination of a witness, except that the court may permit leading questions, in its discretion, in circumstances such as, but not limited to, the following: (1) when a party calls a hostile witness or a witness identified with an adverse party, (2) when a witness testifies so as to work a surprise or deceit on the examiner, (3) when necessary to develop a witness' testimony; or (4) when necessary to establish preliminary matters." § 6-8(b).
" C.C.E. § 6-8(b) restates the general rule that leading questions are not proper on direct or redirect examination of a witness but are proper on cross-examination or recross-examination . . .
" A question is leading if it suggests an answer in accord with the examiner's view of the matter rather than calling for an expression of the witness's observations . . . Because improper suggestion cannot be 'erased' from the witness's attention, the only remedy is a preventive one that lies in the trial court's power to govern the conduct of counsel . . .
" C.C.E. § 6-8(b) expressly authorizes the court to allow leading questions on direct or redirect examination in four listed circumstances, and in such others as the court, in its discretion, deems justified. The trial judge has wide discretion in allowing leading questions on direct examination, and the judge's ruling will stand unless prejudice has clearly resulted from the judge's admitting too many questions of this type . . .
" One may lead one's own witness whom the court has found to be hostile or who has so testified as to work a surprise or deceit on the examiner . . . Although not essential, an express finding of surprise or hostility by the court is the better practice . . .
" The Code appears to presume that a witness 'identified with an adverse party' is hostile, but that matter should be resolved on a witness-by-witness basis." (Emphasis added.) C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § § 6.20.2, 6.20.3, 6.20.4, pp. 330-32.
The plaintiffs argue that pursuant to General Statutes § 52-178 they had the absolute right to question the adverse party, the defendant, as an adverse witness and that counsel should have been permitted to ask leading questions at the very beginning of his testimony without the need to request that he be declared an adverse witness. The plaintiff seems to argue that pursuant to § 52-178, the trial judge has no discretion in determining whether to allow the use of leading questions to examine a witness who is an adverse party to a civil action. The court disagrees. General Statutes § 52-178 provides in relevant part: " A party to a civil action . . . (1) May compel any adverse party, any person for whose benefit the action or proceeding is instituted, prosecuted or defended, or any officer, director, managing agent, or other agent or employee having knowledge of facts relevant to the action or proceeding, of a public or private corporation, partnership or association which is an adverse party or for whose benefit the action or proceeding is instituted, prosecuted or defended, to testify as a witness in his behalf, in the same manner and subject to the same rules as other witnesses; (2) may take the deposition of such party or person in the same manner and subject to the same rules as those pertaining to the taking of other depositions; and, (3) in either case, may examine such party to the same extent as an adverse witness." Nowhere does the statute mandate that the person calling the adverse party as a witness may examine the adverse party through the use of leading questions. What the statute provides is that the adverse party may be " examine[d] . . . to the same extent as an adverse witness." The Connecticut Code of Evidence § 6-8 (b) provides in relevant part that " leading questions shall not be used on the direct or redirect examination of a witness, except that the court, may permit leading questions, in its discretion, in circumstances such as, but not limited to . . . when a party calls a hostile witness or a witness identified with an adverse party . . ." (Emphasis added.) Thus, it is clear that whether to allow plaintiffs' counsel to ask the defendant leading questions was clearly in the court's sound discretion.
Furthermore, as noted in C. Tait & E. Prescott § 6.20.3: " The Commentary [to C.C.E. § 6-8(b)] states that, under C.G.S. § 52-178, the right to use leading questions to examine an adverse party or certain persons identified with that party' as an adverse witness is not discretionary. See C.C.E. Commentary § 6-8(b). No case has ever so held, and the Commentary assertion runs counter to the Code's general grant of discretion in this section." Id., 331. Thus, it was within this court's discretion to determine whether leading questions should have been permitted in questioning the defendant. Because this court is mindful that " a question is leading if it suggests an answer in accord with the examiner's view of the matter rather than calling for an expression of the witness's observations, . . . [and] [b]ecause improper suggestion cannot be 'erased' from the witness's attention", the court in its discretion, initially did not allow plaintiffs' counsel to pose leading questions to the defendant. However, the court ultimately permitted counsel to question the defendant using leading questions, once it determined that the defendant was not answering counsel's questions directly and was being evasive in his responses to counsel's questions. A review of the record indicates that it was almost immediately after counsel requested that the defendant be declared a hostile witness, did the court do so and permitted counsel to use leading questions. See, F.T.R., 7/15/2016, 3:26:37-4:48:47 p.m. Once the court made this ruling, plaintiffs' counsel was free to revisit any line of questioning which he felt was not adequately addressed prior to the court's ruling. Thus, the court's ruling was not harmful to the plaintiffs and, accordingly, the court did not abuse its discretion. The plaintiffs' motion to set aside the verdict based on this ground is denied.
D
Jury Instructions
The standard for evaluating a claim of instructional error is well established: " The trial court has wide discretion in charging the jury." (Internal quotation marks omitted.) Stratek Plastic Ltd. v. Ibar, 145 Conn.App. 414, 417, 74 A.3d 577 (2013). " [A] charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts . . . [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . [an appellate court] will not view the instructions as improper . . . [An appellate court does] not critically dissect a jury instruction." (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 238-39, 828 A.2d 64 (2003). Moreover, " [a] court is under no duty at any time to charge in the exact language requested . . . Failure to charge precisely as proposed by a defendant is not error where the point is fairly covered in the charge . . . Instructions are adequate if they give the jury a clear understanding of the issues and proper guidance in determining those issues." (Citations omitted.) Tomczuk v. Alvarez, 184 Conn. 182, 190, 439 A.2d 935 (1981).
The plaintiffs claim that the wording of the court's jury instruction regarding the application of the Connecticut Equestrian Activities statute, General Statutes § 52-557p was in error because it was too harsh and improperly conclusive in its statement concerning the language regarding assumption of the risk.
Regarding the defendant's special defense of immunity raised pursuant to § 52-557p the court instructed the jury as follows: " The statute on which the last special defense is based requires some explanation. Connecticut General Statutes § 52-557p provides as follows: 'Each person engaged in recreational equestrian activities shall assume the risk and legal responsibility for any injury to his person or property arising out of the hazards inherent in equestrian sports, unless the injury was proximately caused by the negligence of the person providing the horse or horses to the individual engaged in recreational equestrian activities or the failure to guard or warn against a dangerous condition, use, structure or activity by the person providing the horse or horses or his agents or employees.'
" I hereby instruct you that, the plaintiff, as someone who was on a horse, was 'engaged in recreational equestrian activities' and is subject to this statute. The statute does not define the phrase 'hazards inherent in equestrian sports'. However, courts of this state have addressed this language. The 'hazards inherent in equestrian sports' as set forth in § 52-557p include but are not limited to those risks attendant to riding a horse. They can also include injuries occurring when mounting a horse. Our legislature has suggested that for purposes of this statute, inherent hazards are those which are necessarily implicated in placing oneself in close proximity to large, powerful and potentially dangerous animals. These risks would include the possibility that the horse might re-act unpredictably to some sight, sound or other stimulus. The risks that these characteristics of horses pose are said to be 'inherent' in horse riding and are, therefore, risks which the rider assumes. Put another way, when a horse causes injury because of it behaving like a horse, its owner or the person who provides it breaches no duty owed to the rider and that person may not be held legally responsible for the rider's injuries. Therefore, should you find that the plaintiff's injuries resulted from the 'hazards inherent in equestrian sports, ' then she assumed the risk and legal responsibility for them, and the defendant may not be held responsible.
" There is an exception, however, to the above stated rule. Connecticut General Statutes § 52-577p, permits a person engaged in equestrian activities to recover from a person providing the horse or, under certain circumstances, his agent or employee if the 'injury was proximately caused by the negligence of the person providing the horse or horses to the individual engaged in recreational equestrian activities or the failure to guard or warn against a dangerous condition, use, structure or activity by the person providing the horse or horses or his agents or employees." This portion of the statute is an exception to the general statement that one who is engaged in equestrian activities assumes the risks inherent in such activity.
" Two classes of persons may be held liable under this statute: 1) the person providing the horse, for his negligence; or 2) the person providing the horse or his agent or employee if such person failed to guard or warn against a dangerous condition, use, structure, or activity. One 'provides' a horse (or anything) when one 'makes it available or furnishes it.' Only a person who 'provides' a horse and who was negligent in a way that proximately caused the plaintiff's injuries may be liable under this portion of the statute. I have already instructed you on the definition of negligence and proximate cause and I will not repeat that instruction here. You are to apply the same definition here.
" The other statutory exception under which liability may be imposed is if the person providing the horse, or his agent or employee, failed to guard or warn against a dangerous condition, use, structure or activity. The alleged 'failure to guard or warn against a dangerous condition, use, structure or activity by the person providing the horse or horses or his agents or employees' may only give rise to damages if the failure to guard or warn against a dangerous condition, use, structure or activity was a substantial factor in causing the plaintiff's injuries. Again, I have already instructed you on the definition of proximate cause and I will not repeat that instruction here. You are to apply the same definition here. If you find that the exception as I just defined for you applies in this case, then you may find the defendant, Paul Kalinowski, Jr. responsible."
First, there are no instructions on this immunity statute contained in the Judicial Branch's Civil Jury Instructions. Thus, in drafting its charge to the jury, the court conducted research of Superior Court decisions on the immunity statute and found a very thorough analysis of the statute, and discussion of its legislative history in the case of Reilly v. Leasure, Superior Court, judicial district of Stamford-Norwalk, Docket No. FSTCV085009675S, (July 12, 2011, Tobin, J.). Judge Tobin provided a very comprehensive discussion of the legislative history and application of § 52-557p in determining the meaning of " hazards inherent in equestrian sports" as that language is used in the statute. He noted: " The activities sought to be protected by the plain language of the statute are 'recreational equestrian activities.' General Statutes § 52-557p does not contain a definition of 'hazards inherent in equestrian sports.'
" The minutes of the legislative debates do provide some insight as to what state lawmakers intended by 'hazards inherent in equestrian sports.' In response to a voiced concern about the lack of specificity in House Bill No. 6357 (1993), Rep. Richard Tulisano, the chairman of the House judiciary committee, said, 'What do we care? It says that a person assumes the risk when they ride a horse.' Conn. Joint Committee on Judiciary Hearings; supra, at p. 3537. At the debate in the House, Rep. Susan Bysiewicz said substantially the same thing: 'What it gets to is assumption of the risk. You assume the risk once you get on a horse.' 36 H.R. Proc., Pt. 14, 1993 Sess., p. 5052. After that, Rep. Robert Simmons asked, 'So, am I to assume from that response that the risk of the operator or the person providing the horse or horses begins at the point that the horse is mounted?' 36 H.R. Proc., supra, at p. 5053. Rep. Bysiewicz answered as follows: '[A] person assumes the risk not necessarily when they get on the horse. For instance, in attempting to get on a horse, the horse could kick them, or step on them.' 36 H.R. Proc., supra, at p. 5054. Rep. John Mordasky, the bill's sponsor, told of an incident where his father 'got beat up pretty bad' by a team of horses that became 'spooked up' after being attacked by hornets. 36 H.R. Proc., supra, at p. 5067 . Rep. Mordasky added: 'There are some things that we don't have control of when it comes to horses. So I believe if you get on a horse, you do it at your own risk.' 36 H.R. Proc., supra, at pp. 5067-68.
" At the Senate debate, Sen. George Jepsen said in relevant part: " I am told that horses have a mind of their own and sometimes you just don't know what they're going to do and people get thrown and that has given rise to liability and lawsuits which perhaps was inappropriate because there was in fact no negligent activity. So what this bill makes clear is that this kind of risk associated with inherent risk in riding horses would not be part of a basis for a lawsuit . . . This, by no means, excuses actual negligence on the part of a horse farm operator. What it does make clear is that there is some activity which [is] effectively beyond their control.' 36 S. Proc., Pt. 10, 1993 Sess., pp. 3702-03.
" The legislative history makes several things clear. First, as indicated by Rep. Bysiewicz's comments in the House, the 'hazards inherent in equestrian sports', as set forth by Section 52-557p, are not limited to those risks attendant to riding a horse and can include injuries occurring during other related activities, such as mounting a horse. Second, lawmakers in both the House and the Senate suggested that for purposes of this statute, inherent hazards are those which are necessarily implicated in placing oneself in close proximity to large, powerful and potentially dangerous animals. These risks would include the possibility that the horse might react unpredictably to some sight, sound or other stimulus." Id.
It is clear, based upon the legislative history as pointed out in Reilly, that the legislature intended the definition of " hazards inherent in equestrian sports" to be broad, and the legislature specifically highlighted the unpredictability of horses when discussing the passage of the bill. Following the decision in Reilly, which is based upon the clear intent of the legislature, as evidenced in the history of the act, the court's instruction on the definition of " hazards inherent in equestrian sports" was a correct statement of the law.
Moreover, the court was also guided by our Supreme Court's decision in Reardon v. Windswept Farm, LLC, 280 Conn. 153, 166-67, 905 A.2d 1156 (2006) when it drafted that portion of its instruction that includes the negligence exception contained in the statute. The court in Reardon noted: " [T]he fact that there are certain risks that are inherent to horseback riding as a recreational activity, as the legislature recognized in § 52-557p, one of which may be that horses move unexpectedly, does not change the fact that an operator's negligence may contribute greatly to that risk. For example, the defendants may have negligently paired the plaintiff with an inappropriate horse given the length of time since she last had ridden or negligently paired the plaintiff with an instructor who had not properly been trained on how to handle the horse in question. Both of these scenarios present factual questions that, at trial, may reveal that the defendants' negligence, and not an inherent risk of the activity, was to blame for the plaintiff's injuries . . . Indeed, the inherent unpredictability of a horse is something that the legislature already has considered in providing to an operator of a horseback riding facility a defense to a claim of negligence pursuant to the assumption of risk doctrine codified in § 52-557p. This protection granted by the legislature, however, does not permit the operator to avoid liability entirely for its negligence or that of its employees." Thus, the court instructed the jury as follows on the exception to the statute and stated: " There is an exception, however, to the above stated rule. Connecticut General Statutes § 52-557p, permits a person engaged in equestrian activities to recover from a person providing the horse or, under certain circumstances, his agent or employee if the 'injury was proximately caused by the negligence of the person providing the horse or horses to the individual engaged in recreational equestrian activities or the failure to guard or warn against a dangerous condition, use, structure or activity by the person providing the horse or horses or his agents or employees.' This portion of the statute is an exception to the general statement that one who is engaged in equestrian activities assumes the risks inherent in such activity.
" Two classes of persons may be held liable under this statute: 1) the person providing the horse, for his negligence; or 2) the person providing the horse or his agent or employee if such person failed to guard or warn against a dangerous condition, use, structure, or activity.
One 'provides' a horse (or anything) when one 'makes it available or furnishes it.' Only a person who 'provides' a horse and who was negligent in a way that proximately caused the plaintiff's injuries may be liable under this portion of the statute. I have already instructed you on the definition of negligence and proximate cause and I will not repeat that instruction here. You are to apply the same definition here.
" The other statutory exception under which liability may be imposed is if the person providing the horse, or his agent or employee, failed to guard or warn against a dangerous condition, use, structure or activity. The alleged 'failure to guard or warn against a dangerous condition, use, structure or activity by the person providing the horse or horses or his agents or employees' may only give rise to damages if the failure to guard or warn against a dangerous condition, use, structure or activity was a substantial factor in causing the plaintiff's injuries. Again, I have already instructed you on the definition of proximate cause and I will not repeat that instruction here. You are to apply the same definition here. If you find that the exception as I just defined for you applies in this case, then you may find the defendant, Paul Kalinowski, Jr. responsible." The court instructed the jury at length on the exception, based upon the language of the statute, and the legal precedent set forth in Reardon .
In their request to charge the plaintiff's proposed the following jury instruction on § 52-557p: " In this case, the Defendant alleges that the Plaintiff Elizabeth Muscio's injuries arose out of hazards inherent in equestrian sports. The Plaintiff Elizabeth Muscio denies that her injuries were proximately caused by hazards inherent in equestrian sports and instead alleges that her injuries were proximately caused by the negligence of the Defendant or his failure to warn or guard against a dangerous condition, use, or activity. If the Defendant proves that the injuries to the Plaintiff Elizabeth Muscio were proximately caused by hazards inherent in equestrian sports, and not the negligence of the Defendant or the failure of the Defendant to warn or guard against a dangerous condition, use, or activity by the person providing the horse or horses, then the Plaintiff Elizabeth Muscio cannot recover from the Defendant because Plaintiff Elizabeth Muscio has assumed the risk of those hazards. If, however, the Defendant does not prove that the Plaintiff Elizabeth Muscio's injuries arose out of hazards inherent in equestrian sports, then Plaintiff Elizabeth Muscio shall not be deemed to have assumed the risk and this statute shall not apply." (Emphasis added.) The language of the plaintiffs' request to charge is not a correct statement of the law because it misconstrues the statute to require the defendant to prove that he was not negligent. The statute requires the defendant to only prove that the plaintiff's injuries arose out of the hazards inherent in equestrian activities. Since the plaintiff, Elizabeth Muscio, alleged that her injuries were proximately caused by the negligence of the defendant, Paul Kalinowski, Jr., it was her burden to prove that the defendant was negligent, and not the defendant's burden to disprove the plaintiff's claim of negligence.
The court's instruction on the other hand is a correct statement of the law as it applies to the facts of this case. The instruction was not too restrictive as claimed by the plaintiffs. Indeed, the jury did find that the defendant was negligent, however, they also reasonably concluded from the evidence submitted, that the defendant's negligence was not the proximate cause of the plaintiff's injuries. Thus, the plaintiffs' motion to set aside based on this ground is denied.
E
Court Schedule
The plaintiffs claim that the " [c]ourt erred in accepting for a jury trial, this case, with its significant number of witnesses and very substantial detail required in testimony, when the time constraints to complete this trial were quite important because of the out-of-state speaking engagement of the [c]ourt and the time limitations imposed." Pl. Mem. p. 2, 14.
The plaintiffs are clearly grasping at straws with this argument and ignores the fact that counsel was aware of the court's schedule prior to commencement of jury selection and raised no objection to the court presiding over this case. Indeed, both counsel, on the record, agreed to the dates on which this case was to be tried. On the first day of jury selection, prior to the commencement of jury selection, the court with both counsel in chambers, discussed the dates on which jury selection would take place and the dates on which evidence would be presented. Immediately thereafter, just prior to the start of jury selection, and on the record, counsel agreed that jury selection would take place from July 7 through 12, 2016, and the presentation of evidence would take place on July 13, through July 20, 2016, and closing and charge on July 21, 2016. Counsel for the plaintiff did not object to this schedule. See F.T.R., July 7, 2016, 12:33:26 p.m. 12:34:56 p.m.
More importantly, the court cancelled its out of state commitment. The court advised counsel and the jury that they would have as much time as necessary to present and decide this case. The jury was not aware of the court's out of state commitment nor the cancellation of same. There is simply no evidence that the parties were in anyway limited in presenting evidence or that the jury was provided with any time limitations for reaching a decision. Plaintiffs' counsel has not identified any specific instance in which the plaintiffs were prevented by the court from putting on their case. Accordingly, the plaintiffs' motion to set aside on this ground is denied.
CONCLUSION
For the foregoing reasons, the plaintiffs' motion to set aside the verdict and for a new trial is denied.