Opinion
CV105033401S
11-16-2018
Rochelle MYRICK, Administratrix of the Estate of Ensley E. Myrick and Tara Reed, Administratrix of the Estate of Joseph E. Reed and Anthony Perelli v. JACK A. HALPRIN, INC. et al.
UNPUBLISHED OPINION
Wilson, J.
I
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiffs, Rochelle Myrick, Administratrix of the Estate of Ensley E. Myrick, Tara Reed, Administratrix of the Estate of Joseph E. Reed, and Anthony Perrelli, commenced this wrongful death and negligent action against the defendants, Jack A. Halprin, Inc. (Halprin) and Catwalk, LLC (Catwalk), based upon premises liability and negligent security. Evidence in this case was presented over a period of two weeks commencing on February 26, 2018, and concluding on March 9, 2018. At the close of the plaintiffs’ case on March 2, 2018, both defendants, moved for a directed verdict, which after argument on that same date, the court denied. On March 9, 2018, the jury returned a verdict in favor of the plaintiffs, against the defendant, Jack A. Halprin, Inc., and found the defendant, Halprin 100% solely liable for the plaintiff’s injuries and deaths. The jury returned a verdict in favor of the defendant Catwalk, LLC. The jury awarded economic damages in the amount of $18,830.59 to the estate of Ensley Myrick; $5,715 to the estate of Joseph Reed; and $1002 to Anthony Perelli. The economic damages awarded to Myrick and Reed represent exactly all of their claimed associated medical and funeral/burial expenses as a result of the accident, and the amount of economic damages awarded to, Perelli represent all of his claimed medical expenses incurred as a result of the accident. Although there was evidence submitted that both Myrick and Reed at the time of their deaths were 27 and 25 years old respectively, with life expectancies of 52.4 and 54.3 years, and that both were gainfully employed at the time of death, the jury did not award damages for their lost wages or for the loss of future income/loss of earning capacity. Anthony Perelli did not make a claim for lost wages or loss of earning capacity. With respect to non-economic damages, the jury awarded Myrick and Reed each, $25,000 and awarded Anthony Perelli, $50,000. The court accepted the verdicts.
The plaintiffs Myrick and Reed filed a Motion to Set Aside the Verdict and for Additur which the court denied on November 1, 2018. On November 2, 2018, the court filed a Corrected Memorandum of Decision to add the heading "Memorandum of Decision."
Pursuant to Practice Book §§ 16-37 and 16-35 and General Statutes § 52-228b, the defendant, Halprin, filed a motion for judgment notwithstanding the verdict and a motion to set aside the verdict. As grounds for both motions, the defendant claims that the evidence was insufficient to prove negligence on the part of Halprin or that any negligence was the proximate cause of the claimed deaths and injuries of the plaintiffs’ decedents and the plaintiff Perelli. More specifically, the defendant argues that the evidence was insufficient to establish any breach of a standard of care or duty by Halprin; the evidence was insufficient to establish that the intentional criminal acts committed by Markease Hill, which resulted in the deaths of Myrick and Reed and injuries to Perelli were foreseeable. The defendant further argues that even if there was evidence of negligence, there was no credible evidence of causation presented to the jury, including the evidence of plaintiff’s expert, Neal Sullivan.
Practice Book § 16-37 provides: "Whenever a motion for a directed verdict made at any time after the close of the plaintiff’s case in chief is denied or for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. After the acceptance of a verdict and within the time stated in Section 16-35 for filing a motion to set a verdict aside, a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside and have judgment rendered in accordance with his or her motion for a directed verdict; or if a verdict was not returned such party may move for judgment in accordance with his or her motion for a directed verdict within the aforesaid time after the jury has been discharged from consideration of the case. If a verdict was returned, the judicial authority may allow the judgment to stand or may set the verdict aside and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned, the judicial authority may direct the entry of judgment as if the requested verdict had been directed or may order a new trial."
Practice Book § 16-35 provides: "Motions in arrest of judgment, whether for extrinsic causes or causes apparent on the record, motions to set aside a verdict, motions for remittitur, motions for additur, motions for new trials, unless brought by petition served on the adverse party or parties, and motions pursuant to General Statutes § 52-225a for reduction of the verdict due to collateral source payments must be filed with the clerk within ten days after the day the verdict is accepted; provided that for good cause the judicial authority may extend this time. The clerk shall notify the trial judge of such filing. Such motions shall state the specific grounds upon which counsel relies.
General Statutes § 52-228b provides: "No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable."
In addition to its insufficiency of evidence on the issue of negligence and causation, ground, the defendant argues in its motion to set aside, that the jury’s verdict is contrary to the law as charged; is contrary to the weight of the evidence; there were evidentiary errors by the trial court in ruling on evidence which include: a. preclusion of the defendant’s expert witness, toxicologist, Dr. Robert H. Powers; preclusion of toxicology records; ruling on the admissibility of prior trial testimony of witness Andrew Guarino; admission of redacted affidavit of defendant Martin Halprin from the federal court action; limitation of defendant’s witnesses by side bar conference; admission of evidence of Catwalk, LLC’s dissolution.
The plaintiffs filed an objection to the motions. The plaintiffs contend that the defendant has provided nothing to substantiate its claim that the verdict rendered by the jury was contrary to the law as charged or that the jury misapplied the law. The plaintiff further points out that the defendant was given every opportunity by the court to submit interrogatories to the jury and it elected not to do so, and thus, the defendant’s claim is based on nothing more than conjecture and surmise and does not constitute a valid basis to set aside the verdict.
The plaintiffs further argue that there is no substantiation for the claim that the verdict is contrary to the weight of the evidence, since the jury was free to accept or reject any evidence or testimony presented, and obviously chose to reject that offered by the defendant. As to the defendant’s claimed errors by the trial court in ruling on evidence, the plaintiffs argue that the court’s rulings on evidence were correct and in accordance with the Connecticut Code of Evidence. The court heard oral argument on the motions on April 16, 2018.
Due to an unexpected death in the court’s family, the court requested the parties to waive the 120-day statutory time required for issuance of the court’s decision and extend the time for issuance of same for 90 days to November 16, 2018. All counsel of record agreed and submitted written waivers.
II
DISCUSSION
A
Judgment Notwithstanding The Verdict
" ‘The right of trial by jury is of ancient origin, characterized by Blackstone as the glory of the English law and the most transcendent privilege which any subject can enjoy ...’ (Internal quotation marks omitted.) Dimick v. Schiedt, 293 U.S. 474, 485, 55 S.Ct. 296, 79 L.Ed. 603 (1935)." Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 280, 32 A.3d 318 (2011).
In considering the defendant’s motions for judgment in its favor notwithstanding the verdict and to set aside the verdict, the court is guided by appellate authority. "Directed verdicts are disfavored because [l]itigants have a constitutional right to have factual issues resolved by the jury ..." Landmark Investment Group, LLC v. Calco Construction and Development Co., 318 Conn. 847, 862, 124 A.3d 847 (2015). The court may "render judgment notwithstanding the verdict, ... only if [it] find[s] that the jury could not reasonably and legally have reached their conclusion ... The question is not whether [the court] would have arrived at the same verdict, but whether, when viewed in the light most favorable to sustaining the verdict, the evidence supports the jury’s determination ... A trial court may only grant a motion for judgment notwithstanding the verdict if the jury reasonably and legally could not have reached any other conclusion; ... and must deny such a motion where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion ..." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 862-63.
"In reviewing the trial court’s decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff ... While it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation ... The standard of review governing a motion for judgment notwithstanding the verdict is the same because a motion for judgment notwithstanding the verdict is not a new motion, but the renewal of a motion for a directed verdict." (Internal quotation marks omitted.) Haynes v. Middletown, 314 Conn. 303, 311-12, 101 A.3d 249 (2014). "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 ..." (Internal quotation marks omitted.) Auster v. Norwalk United Methodist Church, 286 Conn. 152, 159, 943 A.2d 391 (2008).
Based on the evidence presented, the jury could have reasonably found the following facts. On the evening of June 10, 2008, the decedents, Ensley Myrick, Joseph Reed, the plaintiff, Anthony Perelli and Andrew Guarino met up at the Fireside Café in New Haven, Connecticut. All four had been drinking while at the Fireside Café. Perelli described himself as being "a little drunk." At approximately 1:00 a.m. all four left the Fireside Café and proceeded to the Catwalk, a strip club located at 323 East Street in New Haven, Connecticut. Myrick and Reed were in Myrick’s vehicle and Perrelli and Guarino were in Guarino’s vehicle. Reed was a passenger in Myrick’s vehicle and Perelli was a passenger in Guarino’s vehicle. Both Myrick and Guarino parked in the parking lot of the Catwalk, also located on East Street, just south of the building where Catwalk is located. Myrick and Reed parked one spot over from Guarino and Perelli. At the time the four arrived at the club, there was not much activity inside the club. Neither of the four had anything to drink while at the Catwalk. There were several individuals in the parking lot and Perelli noticed that there were people hanging out on East Street in front of the club. Around 1:30 a.m. on June 11, 2008, Myrick, Reed, Perelli and Guarino proceeded to leave the Catwalk. Myrick, Reed and Guarino walked out ahead of Perelli and proceeded to their cars, because Perelli had to use the restroom. About two to three minutes after Myrick, Reed and Guarino proceeded outside, Perelli left out of the strip club and proceeded to the parking lot. Perelli observed Guarino talking to a male, later identified as Marquease Hill. Perelli observed that the two were talking friendly and that both he and Guarino shook Marquease’s hand. All four proceeded to their cars and got in the cars to leave. As they were waiting to leave, they observed two individuals arguing in back of Myrick’s vehicle, blocking Myrick from leaving. One of the individuals engaged in the argument was Marquease Hill. Myrick exited his car, and asked if everything was okay. Hill stated "yes, he was just arguing [with whomever he was arguing], and that he would be done in a minute." Myrick then got back into his car, at which point, all four were waiting to leave. Two minutes went by, and the arguing continued behind Myrick’s car, blocking him from exiting the parking lot. Myrick exited his car again, because all four were ready to leave. Myrick spoke to Marquease and the individual with whom Marquease was arguing ... Marquease stated that "we’re arguing and we’ll be done in a minute." Myrick got back into his car for a second time and another minute went by. Myrick got out of his car and Hill began approaching Myrick as he was exiting his car. Myrick wanted to know what the problem was and why Marquease and the individual with whom Marquease was arguing were not getting out of the way of his car so that he could leave, at which point Myrick gestured his hand. Hill then pulled a gun out and shot Myrick in the chest and face, and then shot Reed in the head and chest. Perelli and Guarino hit the ground. Perelli observed both Myrick and Reed who were on the ground with gunshot wounds. Perelli then observed footsteps approaching him at which point he got up and "ran for his life." Perelli did not look back, he heard more gunshots and kept running, jumped over a retainer wall and onto train tracks at the rear of the Catwalk building. As he stopped to catch his breath, Perelli observed Guarino drive by, at which point he contacted Guarino on his cell phone and asked him to come pick him up which Guarino did. Neither Perelli nor Guarino called the police. Both were very shaken, after having thought that the other was dead, and did not know what to do.
There was also evidence presented through the testimony of Lieutenant Wayne Bullock, New Haven Police Department (NHPD) that in his statement to the police, Perelli gave a different version of what occurred on the evening of the shooting. Perelli indicated that when he and the decedents and Guarino left the Catwalk an argument ensued between Myrick and two black females. The two black females were on Myrick’s car and Myrick told them to "get the f ... away from his car." Hill entered the argument at some point and time. The argument took place at the back of Myrick’s car. Perelli stated that Myrick was trying to calm Hill down and de-escalate the situation. Perelli stated that after that, Myrick and Reed got back into the car and were trying to leave. At some point Myrick and Reed got out of the car and started to "square up" or was getting ready to fight Hill.
Sergeant Turney, one of the investigating officers, who investigated the shooting, also testified as to what Perelli told her what occurred on June 11, 2008. Turney testified that Perelli and Guarino were at the Fireside Café and Myrick and Reed came into the Fireside. This was not a planned meeting, but the four of them happened to meet up at the Fireside. They had some drinks while at the Fireside, and then decided to go to a strip club. They decided to go to the Catwalk. They all went to the Catwalk, Reed and Myrick were in Myrick’s vehicle and Perelli and Guarino were in Guarino’s vehicle. They were at the Catwalk until closing. There were no issues inside the Catwalk, no fights, no arguments. Myrick, Reed and Guarino walked out of the Catwalk first, because Perelli stopped to use the restroom. When Perelli proceeded outside, he observed a group of females on Myrick’s car. Myrick was on the driver’s side and Reed and Guarino were on the passenger side. Perelli observed that there was an argument going on amongst the group, and then a black male, later learned to be Hill, came from across the street into the parking lot. Myrick and Hill had several words, at which point Hill pulled out a gun and shot Myrick, who then fell to the ground. He then turned and fired toward Guarino and Reed, both fell to the ground. Perelli thought all three had been shot, but later realized, as he was running away from the scene, that Guarino had not been shot, but that he had gotten into his car and left the scene as well. Perelli ran from the scene on foot, jumped down onto railroad tracks behind the area, ran up the street, saw Guarino’s car drive by, called Guarino and told him to spin around and come pick him up which is what Guarino did and the two left the area.
The jury was free to accept all, none or some of this evidence presented. Thus, it was within the jury’s province to either accept, all, some or none of Perelli’s testimony given at trial and his statements made to the police after the shooting.
Catwalk, at the time of the incident was owned by Catwalk, LLC and operated by Christine Sempe, a member of the LLC. Located next to Catwalk was Hell Lounge and Bar, located at 321 East Street, which at the time was also owned and operated by Christine Sempe. Halprin owned the building located on East Street, and at the time of the incident, Halprin leased space at 323 and 321 East Street to both Catwalk and Hell Bar and Lounge. The lease in effect at the time of the shooting was a five-year lease, from June 2005 to June 2010. Additional facts will be provided as necessary.
The plaintiffs filed a complaint alleging that the death of their decedents, and injuries sustained by Perelli, were a result of the defendant’s failure to maintain and to provide adequate security in the parking lot of Catwalk. Specifically, the plaintiffs alleged that the defendant "(a) failed to properly secure the parking lot located at the East Street building; (b) the defendant failed to properly maintain the parking lot; (c) failed to properly supervise the parking lot; (d) failed to properly inspect the parking lot; (e) failed to properly and reasonably supervise those individuals who were on said premises, including those who were in the parking lot; (f) failed to properly and reasonably protect those individuals who were on said premises, including those who were in the parking lot; (g) failed to properly and reasonably control those individuals who were on said premises, including those who were in the parking lot; (h) failed to stop and prevent the illegal sale and consumption of alcohol on said premises, including in the parking lot; (i) knew or reasonably should have known that the above referenced parking lot was unsecured and/or unsupervised, it failed to place attendants, security personnel and/or security devices on or about the same, or take other reasonable steps to protect the safety of those individuals who were in said parking lot; (j) failed to have live monitoring and/or reasonably monitor its security cameras; [that] (k) although the defendant knew or reasonably should have known that the illegal sale and consumption of alcohol was occurring in the aforementioned parking lot, it failed to take steps to stop and prevent the same by placing attendants, security personnel and/or security devices on or about said parking lot; (1) failed to provide adequate security personnel on said property, including in, on and about the aforementioned parking lot; (m) failed to properly supervise the security that it did provide, if any, on said property; (n) failed to warn those individuals who were on said property that the aforementioned parking lot was unsecured and/or unsupervised; [that] (o) although the defendant knew or reasonably should have known of the aforementioned defective, dangerous and unsafe conditions, it failed to hire and employ extra-duty uniformed police officers so as to prevent the same from occurring and protect those individuals who were on said property; [that] (p) although the defendant knew or reasonably should have known of the aforementioned defective, dangerous and unsafe conditions, it failed to use and implement security cameras on and about the above referenced parking lot, or if it did so, the same were not positioned properly, functioning properly, and/or were not hooked up or activated; and [that] [q] although it knew or reasonably should have known of the aforementioned defective, dangerous and unsafe conditions, it failed to provide and use sufficient lighting on and about the above referenced parking lot to ensure that the parking lot was well lit and make the individuals and their activities in said parking lot readily available." Myrick v. Halprin, Superior Court, judicial district of New Haven, Docket No. CV-10-5033401-S, Jury Charge, 3/8/2018, pp. 32-34.
The defendant denied the plaintiffs’ allegations of negligence and raised the special defenses of comparative negligence and superseding cause. Specifically, as to the decedents, Myrick and Reed, that they "a. failed to keep a reasonable and proper look out for their own safety, including but not limited to, awareness of their surroundings and possible danger; b. voluntarily involved themselves in a dispute or altercation with the defendant, Markease Hill, and/or others present at the location; c. failed to remove themselves from a dispute or altercation at the subject location, when the same would have been reasonable under the circumstances; d. failed to leave the area and/or seek assistance of the staff from the defendant, Catwalk, LLC when the possibility of an altercation at the premises became likely; and [that] e. their faculties were impaired by the voluntary consumption of alcohol." Id., 46-47.
As to the plaintiff Perelli, the defendant alleged in its special defense that he a. "failed to keep a reasonable and proper look out for his own safety, including but not limited to, awareness of his surroundings and possible danger; b. failed to leave the area and/or seek assistance of the staff from the defendant, Catwalk, LLC when the possibility of an altercation at the premises became likely; and [that] c. his faculties were impaired by the voluntary consumption of alcohol." Id., 47. Finally, the defendant also raised as a special defense, that the deaths of the decedents and injuries to Perelli, were a result of the ‘intentional and/or criminal actions of a third person, ’ namely Marquease Hill, that superseded any possible negligence on the part of the defendant.
In its motion for judgment notwithstanding the verdict, the defendant Halprin claims that the evidence was insufficient to prove negligence on the part of the defendant or that any negligence was the proximate cause of the claimed deaths and injuries of the plaintiffs. More specifically, the defendant argues that the evidence was insufficient to establish any breach of a standard of care or duty by the defendant. The defendant further claims that there was insufficient evidence to establish that the brutal murders, intentional criminal acts were foreseeable.
" ‘The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury ... If a plaintiff cannot prove all of those elements, the cause of action fails.’ (Internal quotation marks omitted.) Gurguis v. Frankel, 93 Conn.App. 162, 167, 888 A.2d 1083, cert. denied, 277 Conn. 916, 895 A.2d 789 (2006). In the case of a negligence action grounded upon a theory of premises liability, the nature of the duty owed to a plaintiff depends upon the plaintiff’s status on the premises at the time of the alleged injury. See Morin v. Bell Court Condominium Ass’n, Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992)." Millette v. Connecticut Post Ltd. Partnership, 143 Conn.App. 62, 69-70, 70 A.3d 126.
In the present case, the parties stipulated that the status on the premises at the time of the decedents’ deaths and plaintiff Perelli’s injuries and losses, was that of business invitees." ‘A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe ... In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.’ (Citation omitted.) Id.; see also 2 Restatement (Second), Torts § 343 (1965).
"Such a duty of care to an invitee, however, only attaches if the defendant exercised possession and control over the area at the time and place the injury occurred. See Farlow v. Andrews Corp., 154 Conn. 220, 225, 224 A.2d 546 (1966); accord 2 Restatement (Second), supra, at § 328E, p. 170 (defining ‘possessor of land’ for purposes of premises liability as one ‘in occupation of the land with intent to control it’). ‘[L]iability for injuries caused by defective premises ... does not depend on who holds legal title, but rather on who has possession and control of the property ... Thus, the dispositive issue in deciding whether a duty exists is whether the [defendant] has any right to possession and control of the property ... Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances ... The word control has no legal or technical meaning distinct from that given in its popular acceptation ... and refers to the power or authority to manage, superintend, direct or oversee.’ (Citation omitted; internal quotation marks omitted.) Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 50, 58 A.3d 293 (2013); see also Farlow v. Andrews Corp., supra, at 225, 224 A.2d 546; Ziulkowski v. Kolodziej, 119 Conn. 230, 233, 175 A. 780 (1934) (defective premises liability ‘ordinarily depends upon power to prevent the injury by making repairs, and therefore rests primarily upon him who has control and possession’)." Millette v. Connecticut Post Ltd. Partnership, supra, 143 Conn.App. 70.
Moreover, as the Supreme Court noted in Lin v. Nat’l RR Passenger Corp., 277 Conn. 1, 16, n.10, 889 A.2d 798 (2006): "in our cases involving claims of premises liability, it does not appear that we have required the plaintiff to show that the defendant had exclusive possession." Therefore, whether Catwalk exercised some control over the parking lot, including periodic snow removal maintenance, would not necessarily preclude liability for defendant Halprin, if the defendant also possessed and controlled the parking lot area.
In the present case, the issue of who possessed and controlled the parking lot where the shooting occurred was hotly contested by Catwalk and Halprin. The jury ultimately concluded that Halprin possessed and control the parking lot area where the incident occurred as is reflected in their verdict in favor of the plaintiffs against Halprin. There was sufficient evidence from which the jury could conclude that Halprin retained control over the parking lot at the time of the shooting. Specifically in the lease agreement, Halprin retained the right to inspect the premises to make repairs. See Def. Ex. D, pars. 21(A) and (B), pp. 8-9; Smith v. Housing Authority, 144 Conn. 13, 16-17, 127 A:2d 45 (1956) (evidence before the jury of an agreement that the landlord had right to inspect the premises and the exclusive right to make repairs therein, and that the tenant would refrain from making any repairs at all. As a matter of law, an agreement of that, nature would be the equivalent of retention by the landlord of control of the leased premises for the purpose of making repairs).
In addition, section 17 of the lease provides that "B. In no event shall [tenant] be permitted to alter the exterior appearance of the building ... provided, however, that [tenant] may change the color of the canopy and add additional lighting and a sign after approval thereof by [landlord ]." (Emphasis added.) Def. Ex. D. The lease also provides that prior to the performance of any alterations or redecorations as set forth in paragraphs 17(A) and (B), the "[tenant] shall supply to [landlord] a list of all persons, firms, corporations which will supply materials or render services in connection with such work ..." Id. Sempe, the owner and operator of Catwalk, acknowledged that pursuant to the lease, Catwalk as the tenant could not change the exterior of the premises; could not put up sign or lights or change the color of the canopy without Halprin’s approval; Halprin had the right to enter the premises for inspection; Catwalk could not put up signs banners or advertising devices without Halprin’s approval; Halprin could assign and designate areas of the parking lot that could be used by Catwalk and its employees; Halprin could adopt reasonable rules and regulations regarding the premises by designating areas of the parking lot that could be used by Catwalk and its employees.
The jury also had evidence from Halprin that it retained control of the parking lot area. Martin Halprin, the authorized agent of Halprin, testified, that with respect to the lighting, although Catwalk took care of the lighting, when the lighting was changed between June 2005, when the lease was entered into, and June 11, 2008, pursuant to the lease agreement, Catwalk was required to obtain Halprin’s approval before changing the lighting. Pursuant to the lease agreement, Catwalk could not put up lighting without Halprin’s approval. There is evidence that Halprin repaired and replaced the pavement and did structural repairs on the property. Additionally, there is an email from Halprin to Sempe directing Sempe to clean up the parking lot. Martin Halprin, admitted that "on a yearly basis, [he would] walk through the subject property located at East Street in New Haven, Connecticut for evaluation [and inspection] of the premises and property." Pl. Ex. 60.
Evidence that Halprin erected a new fence in the parking lot area after June of 2008 was admitted on the issue of control which, as previously noted was hotly contested. See, Duncan v. Mill Management Co. of Greenwich, Inc., 308 Conn. 1, 16, 60 A.3d 222 (2013) (evidence of subsequent remedial measures may be admitted to prove control when issue of control is controverted). Thus, the jury had sufficient evidence all of which is discussed above, from which it could reasonably conclude that Halprin retained control over the parking lot where the shooting occurred.
Given that the jury had sufficient evidence to conclude that Halprin had possession and control of the premises where the shootings occurred, Halprin thus had a duty to reasonably inspect and maintain the parking lot in order to render it reasonably safe. "It is a basic legal tenet that a possessor of land has a duty of care towards invitees to protect against harmful acts of third persons. 2 Restatement (Second), Torts § 344 (1965). Our Supreme Court has explicitly held that ‘the possessor of the premises ... [has] the duty of exercising reasonable care and control to protect its invitees from dangers which might reasonably be anticipated to arise from the conditions of the premises or the activities taking place there ... In particular, the possessor must exercise the power of control or expulsion which his occupation of the premises gives him over the conduct of a third person who may be present, to prevent injury to the visitor at his hands. He must act as a reasonable man to avoid harm ... even from intentional attacks on the part of such third persons.’" (Citation omitted; emphasis added; internal quotation marks omitted.) Merhi v. Becker, supra, 164 Conn. at 520.
Restatement (Second), Torts § 344 (1965), states: "A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such purpose, for physical haiin caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise protect them against it."
"Whether the dangerous acts complained of were reasonably foreseeable so as to impose a duty upon the defendant, therefore, turns on whether the attack upon the plaintiffs could have been reasonably anticipated to arise from the [criminal activities surrounding East Street and the Catwalk Club]. The facts and holding of Merhi are instructive on this point. Merhi involved an appeal from a jury verdict in favor of the plaintiff. The plaintiff had brought an action in negligence as a result of being intentionally struck by a car while attending a picnic planned and sponsored by the defendants. Prior to the injury, the guests at the picnic had been drinking alcohol and, particularly with regard to the driver, there had been physical altercations between guests. In ruling that the possessor of the premises had a duty of exercising reasonable care and control to protect invitees, the Court held that a jury could have reasonably found ‘the defendant ... had failed to perform its duty to provide adequate police protection or otherwise to control the activities of its beer drinking guests, especially after the earlier outbreak of fisticuffs.’" Merhi v. Becker, supra, 164 Conn. at 520.
"The Supreme Court in Monk v. Temple George Associates, LLC, 273 Conn. 108, 115, 869 A.2d 179 (2005), also imposed such a duty upon a premises owner while explicitly finding that the intentional and criminal conduct in that case was reasonably foreseeable. The Court in Monk found that the defendant owner of a parking garage had a duty with regard to the plaintiff who had been attacked while returning to her vehicle. In finding the attack was reasonably foreseeable, the Court relied upon the record which disclosed the following facts: the attack occurred in the nightclub area of New Haven, during the evening hours, at a time where many people would be seeking parking for the purpose of attending the clubs; the area was known for its high incidents of serious crime; police had been dispatched to the area that evening for crowd control purposes; and, despite what seemed to be adequate lighting, the obscured lines from the street created an opportunity to commit an assault out of view from the police posted nearby. According to the Court, ‘[i]t seems quite foreseeable that, under these circumstances, an attack on a patron of the premises could occur, whether spontaneously or as precipitated by an argument at one of the neighboring nightclubs.’ (Emphasis added.) Id." Cirillo v. Gotham Citi Café, Superior Court, judicial district of New Haven, Docket No. CV-126032042S (June 5, 2014, Wilson, J.) .
More recently, our Appellate Court in Snell v. Norwalk Yellow Cab, Inc., 172 Conn.App. 38, 158 A.3d 787 (2017), reviewed the continued viability of the doctrine of superseding cause. The court gave a thorough and useful discussion on the parameters of the doctrine, which is instructive here, noting that, "[i]t is axiomatic that ‘[t]he elements of a cause of action for negligence are duty, breach, causation and damages.’ Coste v. Riverside Motors, Inc., 24 Conn.App. 109, 112, 585 A.2d 1263 (1991). The element of causation is itself composed of two components: causation in fact, also referred to as actual cause, and proximate cause. Ruiz v. Victory Properties, LLC, 315 Conn. 320, 329, 107 A.3d 381 (2015). Both must be satisfied to establish legal causation. ‘With respect to the first component, causation in fact, we ask whether the injury would have occurred but for the actor’s conduct ... Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions ... The test for proximate cause is whether the defendant’s conduct was a substantial factor in producing the plaintiff’s injury ... This substantial factor test reflects the inquiry fundamental to all proximate cause questions, namely, whether the harm [that] occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence.’ (Citations omitted; emphasis added; internal quotation marks omitted.) Id. ‘Legal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation.’ Kowal v. Hofher, 181 Conn. 355, 359, 436 A.2d 1 (1980). ‘[P]olicy considerations generally underlie the doctrine of proximate cause.’" Id., at 360, 436 A.2d 1.
"As its name implies, the doctrine of superseding cause is logically related to the element of legal causation and, like proximate cause, is, at its core, a legal construct that serves as a limitation on liability. As our Supreme Court has described it, ‘[t]he function of the doctrine [of superseding cause] is to define the circumstances under which responsibility may be shifted entirely from the shoulders of one person, who is determined to be negligent, to the shoulders of another person, who may also be determined to be [culpable], or to some other force ... Thus, the doctrine of superseding cause serves as a device by which one admittedly negligent party can, by identifying another’s superseding conduct, exonerate himself from liability by shifting the causation element entirely elsewhere ... If a third person’s [culpability] is found to be the superseding cause of the plaintiff’s injuries, that [culpability], rather than the negligence of the party attempting to invoke the doctrine of superseding cause, is said to be the sole proximate cause of the injury.’" (Citations omitted; emphasis in original; internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., supra, 263 Conn. at 434-35, 820 A.2d 258.
"[The court] note[d] that the modern approach to superseding cause, as reflected in § 34 of the Restatement (Third) of Torts, and related reporter’s notes, is to treat the notion of superseding cause as a facet of scope of liability, a term the Restatement uses in discussing what courts refer to as proximate causation. 1 Restatement (Third), Torts, Liability for Physical and Emotional Harm, § 34, pp. 569-92 (2010). As noted by the reporter’s notes, our Supreme Court’s decision in Barry reflects a jurisprudential move toward embracing that approach. Id., reporter’s notes, p. 579. The Supreme Court in Barry, however, left vestiges of the older approach-analyzing superseding cause as a distinct doctrine-in place, adopting the modern approach only with respect to intervening acts of negligence. Barry v. Quality Steel Products, Inc., supra, 263 Conn. at 439 n.16, 820 A.2d 258. The court’s opinion in Barry is silent as to the court’s reasoning for carving out its exceptions, but perhaps it reflects the reality of our apportionment statute, which strictly limits apportionment to acts of negligence. In any event, in cases such as the present one, we are left to treat superseding cause as related to, but distinct from, the proximate cause inquiry." Snell v. Norwalk Yellow Cab, Inc., supra, 172 Conn.App. 57, n. 13.
"The Restatement (Second) of Torts, to which our courts have consistently turned for guidance in crafting our own common law, defines a superseding cause as ‘an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.’ (Emphasis added.) 2 Restatement (Second), Torts § 440, p. 465 (1965). In other words, a superseding cause is simply an intervening action or force that, as a matter of policy, operates to shield from liability even a defendant whose own negligence was a ‘substantial factor in bringing about’-and, thus, proximately caused-a plaintiff’s harm.
"The [Appellate Court] recognize[d] that there is some tension between the definition in the Restatement (Second) of Torts of superseding cause and the quoted statement by the court in Barry that a superseding cause be viewed as the ‘sole proximate cause’ of a plaintiff’s injuries. Barry v. Quality Steel Products, Inc., supra, 263 Conn. at 435, 820 A.2d 258. Comment (b) of § 440 of the Restatement (Second) of Torts clarifies that ‘[a] superseding cause relieves the actor of liability, irrespective of whether his antecedent negligence was or was not a substantial factor in bringing about the harm.’ (Emphasis added.) [The court] construe[d] the reference in Barry to ‘sole proximate cause’ not as a repudiation of the Restatement’s broader definition but simply as a recognition that in some cases involving a superseding cause, the superseding event may so diminish the impact of the initial negligence of the defendant that that negligence can no longer be viewed as a substantial factor in bringing about the plaintiff’s injury, thus transforming the superseding cause into the sole proximate cause of the harm. This iteration of the doctrine, however, does not expressly preclude that in certain cases factually distinct from that considered by the court in Barry, the impact of the defendant’s initial negligence will not be so diminished by the later intervening act as to fully negate the initial negligence as a substantial factor in causing the harm at issue. In such cases, application of the doctrine of superseding cause may nonetheless be justified to prevent an otherwise inequitable determination regarding liability." Id., 58.
"Sections 442 through 453 of the Restatement (Second) of Torts contain general principles intended to help courts determine under what circumstances policy may dictate that the actions of a third party or other intervening force constitute a superseding cause. Of particular relevance to this case are §§ 442B, 448, and 449, which have been cited favorably or adopted by our Supreme Court in the past. See Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 607, 662 A.2d 753 (1995) (noting adoption of § 442B); Doe v. Saint Francis Hospital & Medical Center, 309 Conn. 146, 177-78, 72 A.3d 929 (2013) (relying in part on §§ 448 and 449).
"Section 442B provides that ‘[if] the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct.’ (Emphasis added.) 2 Restatement (Second), Torts § 442B, p. 469 1965). Comment (c) of § 442B makes reference to both intentional torts and criminal acts by a third party, and provides in relevant part that § 442B ‘does not apply where the harm of which the risk has been created or increased by the actor’s conduct is brought about by the intervening act of a third person which is intentionally tortious or criminal, and is not within the scope of the risk created by the original negligence. Such tortious or criminal acts may in themselves be foreseeable, and so within the scope of the created risk, in which case the actor may still be liable for the harm, under the rules stated in §§ 448 and 449. But if they are not, the actor is relieved of responsibility by the intervention of the third person.’ (Emphasis added.) Although § 442B references ‘harm intentionally caused by a third person, ’ this appears to be incongruous with much of the commentary, which refers more generally to intervening acts that are either intentional torts or criminal acts, without limitation to a particular level of mens rea. (Emphasis added.) Nowhere in the commentary to this section is there any indication that only crimes involving a specific intent to cause harm can amount to a superseding cause nor ... do we construe the doctrine that narrowly.
"Section 448 of the Restatement (Second) of Torts provides: ‘The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.’ Finally, § 449 provides: ‘If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.’ 2 Restatement (Second), Torts § 449, p. 482 (1965).
"Accordingly, even in cases in which the risk of a third party’s intervention is a generally foreseeable consequence of a defendant’s actions, it is a question of fact whether the third party’s intervening actions fall somewhere within the hazard created by the defendant’s negligence, i.e., within the scope of the risk. Only if the answer to that question is so abundantly clear as to be detenuinable as a matter of law should the court decline to give an instruction on superseding cause. Otherwise, the inquiry is a factual issue that should be presented to and decided by a jury. If the jury determines that the superseding action that occurred falls outside the scope of the risk of the third party intervention created by the defendant’s negligence, liability is appropriately shifted away from the negligent defendant." (Emphasis added.) Snell v. Norwalk Yellow Cab, Inc., supra, 172 Conn.App. 56-61. Thus, "lack of foreseeability is the linchpin of any superseding cause defense." Id., 65.
In the present case, the jury had sufficient evidence from which it could conclude that Catwalk was located in a high crime area, that there was regular criminal activity that took place in and around the Catwalk parking lot, that the defendant knew of this criminal activity and failed to provide adequate security in the parking lot, that the defendant’s failure to provide adequate security was the proximate cause of the decedents’ deaths and Perelli’s injuries, and that Hill’s shooting was within the scope of the risk created by the defendant’s failure to provide adequate security on the Catwalk premises.
Based on the testimony of Thomas Ellis, Sada Marshall, Christine Sempe, and the plaintiff’s expert, Neil Sullivan, the jury could have reasonably found the following additional facts.
Thomas "Tommy" Ellis worked for Simkins Industries for 20 years as a machinist. Simkins is located on East Street, in close proximity to the Catwalk. The Simkin’s property can be accessed by way of the Catwalk parking lot. After Simkins closed down, Ellis became the night security guard at the Simkins property. From January to June 2008 Ellis regularly went to Catwalk all the time. Ellis would have after hour parties at the Simkins property and sold alcohol out of the trunk of his car regularly every night outside Catwalk around two in the morning after the Hell Bar and Lounge would close. Ellis observed people drinking in the Catwalk parking lot. Ellis testified that the individuals who attended his after hour parties at Simkins would park in the Catwalk parking lot and walk down to Simkins from the back. When Ellis sold alcohol outside of Catwalk he observed Sempe. No one from Catwalk, including Sempe told him to stop selling alcohol. Ellis observed dancers and bouncers from Catwalk at his after hours parties at Simkins. Ellis testified that he observed people drinking and fighting in the Catwalk parking lot and he observed drug use and prostitution. Ellis testified that at night there were a lot of cars in the parking lot; "it was a hell hole; all the bad people came out" to the Catwalk parking lot, "including me." Ellis described the Catwalk parking lot as "New Jack City."
Ellis’ after hours parties were so highly frequented, to the point where Sempe, the owner and operator of Catwalk received complaints about the unavailability of parking spaces to her employees. In addition, individuals from Ellis’ after hours parties would frequently come to the Catwalk to use its restroom. Ellis also testified that the parking lot was not fully illuminated or lighted; was not fenced in June 2008, was opened twenty-four hours and his after hour parties went on until 11:00 a.m. As animated, and at times incredible, as Ellis presented his testimony, the jury still had every right to credit any portion of it, some, all or none.
The evidence established that Catwalk did not have a liquor permit. Sada Marshall, was a dancer at the Catwalk at the time of the shooting. Sada Marshall testified that patrons could bring their own alcohol into Catwalk, they would give the alcohol to the bartender and then could purchase it back. Marshall observed crimes in the area of Catwalk and the parking lot prior to the shooting, and described the area as a very bad area. Marshall parked in the parking lot across the street from Catwalk because she was afraid to park in the Catwalk parking. lot. She described the parking lot as "very dark" and "abandoned looking." Marshall witnessed fights in the parking lot and people smoking marijuana in their cars. Prior to the night of the shooting, there were times that the Catwalk bouncers would have to stop people from fighting. Bouncers would also come outside to make sure the dancers were not inappropriate and that they would go directly from the Hell Bar, next door, to the Catwalk. She testified that there would always be people outside and that employees would hangout outside of Catwalk and that there would be an influx of people from other bars that would hang out in front of Catwalk.
Christine Sempe, owner and operator of the Catwalk testified. Sempe testified that prior to June 11, 2008 she knew of criminal activity in the area but not acts of violence and that she was aware of cars being broken into in the area. Prior to June 11, 2008, Sempe found a girl drugged inside of a car in the Catwalk parking lot. Prior to the shooting on June 11, 2008, Sempe knew who Ellis was and was also aware that Ellis was throwing after hours parties at the Simkins guard shack and that he was selling alcohol after hours. As previously noted, Simkins is behind the Catwalk parking lot and can be accessed by way of the Catwalk parking lot. Prior to, and on June 11, 2008, individuals could access the Simkins guard shack from the Catwalk parking lot. Ellis became the night security at Simkins when it closed. Sempe acknowledged that it was during this time, which was prior to the shootings, that Ellis’ parties got out of control. Sempe testified Ellis’ parties started to overflow into the Catwalk parking lot at which point she began receiving complaints from the dancers that there was nowhere for them to park. She further testified that people were coming down to the parties and paying Ellis for liquor. The parties started to over flow into the Catwalk lot and people were coming to ask to use the bathroom. Sempe was aware of unauthorized use of the Catwalk parking lot by non-patrons. Sempe also started regularly calling the police to complain. Sempe did not allow staff to go to Ellis’ parties. Sempe informed Halprin about the situation for two reasons: 1. to give him updates on things going on, and 2. because she knew who Ellis was and it was more about "can you believe the BS thing [Ellis is] trying to pull off." FTR, 2/28/2018. Halprin testified that he knew Ellis, and was aware of Ellis’ after hours parties.
The defendant Halprin admitted that for eighteen years prior to 2011, the subject property located on East Street contained a liquor establishment and that on a yearly basis he would walk through the property for evaluation of the premises and property. He admitted that "[I]n each yearly inspection, it would be clearly obvious that located on the subject premises was a liquor establishment and that it was reasonably foreseeable that an assault and battery could occur in connection with a liquor serving establishment." Pl. Ex. 60.
Neil Sullivan, plaintiff’s security expert testified. Sullivan was employed with the Hartford Police Department for twenty-one years. He started as a patrolman and retired as Deputy Chief of Field Services. As Deputy Chief he was responsible for 80% of the police department with 400 officers under his command. After leaving the HPD, Sullivan was employed with the Connecticut Mutual Insurance Company (CMIC) as Corporate Security Director for five years. As Security Director, Sullivan had a variety of duties: he was responsible for: supervising a contract guard force; supervising a number of in-house security employees; responsible for corporate security and executive protection; overseeing security systems; monitoring activity on the insurance campus; and allocating resources and mechanical devices as necessary to provide protection. The monitoring of security on campus required the monitoring of parking lots which included security for five ground parking lots, a total of 1, 900 cars including parking garages.
After leaving CMIC Sullivan became employed with the University of Connecticut Medical Center (UCMC) as Director of Public Safety and Chief of Police. Sullivan was employed 20 years at UCMC. As Chief of Police, Sullivan led the police department and the civilian personnel who supported them and managed the police department. Sullivan oversaw all of the parking lots, oversaw contractors who serviced surveillance equipment, and assigned police officers as well as non-sworn security staff to various entrances on the medical campus to provide security. Sullivan was responsible for supervising security for over 2, 000 parking spaces which were in eight or ten lots, and as time went on the medical center acquired additional buildings and when he left his position, there were approximately fifteen different size parking lots and one parking structure.
When Sullivan left UCMC he retired. During his retirement, Sullivan continued to provide consulting services relating to premises liability and security. Sullivan also volunteered in North Carolina for community organizations to organize community watches and crime prevention programs, which included instruction on crime prevention. Sullivan has also lectured on various security and crime prevention topics. As police commander he lectured on police related subjects, such as criminal law, processing records keeping and patrol functions. As a civilian administrator and as a community volunteer he lectured on crime prevention techniques and strategies. Sullivan is board certified as an expert in security management by the American Society for Industrial Security which is a large international security organization. Sullivan has previously testified as an expert on premises security in trials in the state of Connecticut and has been consulted in other cases as an expert. Including trials and depositions, Sullivan has testified in approximately 25 to 26 cases.
Sullivan provided a risk assessment of the security on the premises where the shooting took place as well as of the neighborhood and surrounding area, and provided an opinion on whether the shooting was foreseeable and whether or not there were any steps that could have been taken by the defendant to prevent the violent acts. In formulating his opinion, Sullivan followed his usual methodology, which is to gather as much information as he possibly could, including interviewing the States Attorney involved in the criminal prosecution, gathering crime statistics about criminal activity in the area of the offense and in the neighborhood, reviewing photographs, witnesses statements, depositions as they became available and newspaper clippings as they became available. Sullivan testified that there is no specific methodology or industry standard in assessing risk. There is an evolving body of industry standards that have not been established. Therefore, security professionals have historically used what Sullivan described as "best practices" as a guide to determine how best to assess risk. Sullivan testified that there are specific risk factors that he analyzes in formulating an opinion on the potential for crime in a specific area: prior criminal behavior; high risk location such as alcohol serving establishments; strip clubs; and isolated areas where there might be unusual activity. In determining whether a specific crime is foreseeable, beyond the obvious of looking for violent crimes, Sullivan looks for other crimes in the area such as car thefts which could escalate to violent crimes. In formulating his opinion, Sullivan reviewed the initial police report, witnesses statements, arrest warrant application, photographs, depositions and crime logs for the New Haven area created by the New Haven Independent. The New Haven Independent, an online newspaper, reached an agreement with the New Haven Police Department to have a direct link with the NHPD to obtain an official crime log or connection with the NHPD records system so that the New Haven Independent could produce an official crime log for the public. Sullivan reviewed the crime logs for the period 2006, 2007 and the first six months of 2008. Sullivan selected a half-mile perimeter because as part of the approach for a risk assessment analysis, it is recommended that you select a cruiser area, a clearly definable neighborhood or a reasonable sample where you can do your research. In this case, in the absence of actual police block and track census information, the logical approach for Sullivan, which approach he has used in the past, was to select a half-mile perimeter. Sullivan reviewed a one-half-mile perimeter around the location of the shooting. Sullivan reduced this area and conducted a separate search for East Street itself and also at the Catwalk location itself Once he established the geographical area, he calculated the numbers of all of the serious offenses: assaults, firearms, and aggravated assaults.
Sullivan also made an onsite inspection of the property located on East Street. He described the area as an industrial area that has no residents. Halprin’s building is a large warehouse building within which there are a number of tenants. At night the only active tenants are the Hell Bar and Lounge and Catwalk, south of the building is the parking lot where the shooting took place and south of the parking lot is the Simkins property.
The crime logs show the address and type of crime, time of day, and the date of the crime. Sullivan found that in 2007 there were 1, 138 police calls within the half-mile radius of the subject property, and on East Street alone there were 289 police calls, among them were robberies, assaults with firearms, other assaults and numerous thefts. In the first half of 2008, there were 117 police calls, within the half-mile radius of Catwalk. The types of crimes included, assaults with firearms, other assaults, shootings, robberies and auto thefts. In the first half of 2008, twenty-six calls were made to the defendant’s premises which included unlawful discharge of a firearm, robbery with a firearm, assaults, criminal mischief and other offenses. Based upon the crime logs, Sullivan concluded that the defendant’s premises was located in a high crime area. In reviewing his materials in formulating his opinion, Sullivan received information, which is consistent with the testimony of other witnesses, that Catwalk was allowing its patrons to bring alcohol into the club, and the bartenders would take the alcohol and then sell it back to the patrons. Sullivan also determined through his investigation, in preparation of formulating his opinion, that Catwalk did not have a liquor permit during the relevant time period, and was in violation of Connecticut liquor laws. Sullivan opined that Catwalk’s routine violation of the liquor laws, promoted criminal activity on the premises. Based upon his findings, including the crime logs, and based upon his experience with the city of HPD, strip clubs or dance clubs tended to attract criminal behavior. Sullivan concluded that the Catwalk had an effect of attracting crime.
Sullivan inspected the lighting and light fixtures on the building and concluded that there would be areas of shadow, and that the lighting in the Catwalk parking lot was insufficient. Sullivan based his conclusion on his knowledge and experience, which included many years of supervising parking lots with twenty-four-hour responsibility. Associated with his years of experience, Sullivan had to make improvements on parking lots by identifying dark spots and spots that create crime risk.
Sullivan opined that in 2008, the nature and character and criminal activity on the premises located at 301-330 East Street, and in the area of the Catwalk was a matter of public information and readily available to the defendants if they chose to inquire. Sullivan opined that it was reasonably anticipated that there was a high risk harm to the patrons of the Catwalk from criminal activity and the climate on the premises of Catwalk and in the parking lot. Sullivan further opined that the criminal acts, including the possibility of violence and shootings on the premises and in the parking lot were reasonably foreseeable.
Sullivan was not aware of any security measures, taken by the defendant, other than signage. Sullivan was not aware of any security measures taken by Catwalk, other than the placement or repair of an additional light. Sullivan opined that Halprin and Catwalk failed to provide a reasonable level of security to the tenants and patrons of the building at night given the nature of the premises and the particular circumstances. Sullivan also testified as to the preventative steps that should have been undertaken by the defendant. Sullivan opined that there should have been security personnel in the parking lot with communication capability to the police, preferably a walkie-talkie or a cell phone. Sullivan opined that a presence of security in the parking lot with the ability to communicate to the police or to a security base is a deterrent to criminal behavior and trespassers. Sullivan further opined that a live person used to observe closed circuit monitors, could observe unlawful behavior and trespassers thereby deterring criminal activity. Consistent with Sullivan’s testimony that Catwalk and Halprin lacked adequate security measures, Sempe, in her testimony acknowledged that Catwalk did not have any working cameras in the parking lot on June 11, 2008. She also acknowledged that prior to June 2008 she did not feel the need to have cameras. Prior to the shooting, cameras were placed in areas where Catwalk wanted to keep an eye on the most, which did not include the parking lot. Prior to June 2008 there was a close circuit screen to view live footage located in Sempe’s office. No one was allowed in Sempe’s office when she was not there, except if they needed to get something out of her office. At the time of the shooting she was not present. No one was monitoring the video screen at the time of the shooting, nor was anyone monitoring the video screen on a regular basis.
Sullivan opined that more lighting in the parking lot would have prevented violent crimes and criminal behavior from occurring in the parking lot. Sullivan opined that based upon his training and experience and review of all of the materials and data in this case, that the shooting that occurred on June 11, 2008, in the Catwalk parking lot was reasonably foreseeable to both Catwalk and Halprin. Sullivan’s opinion was based upon the materials and data he had about the East Street and Catwalk environment and the totality of the circumstances. In response to defense counsel’s question of whether the decedents’ and Perelli’s consumption of alcohol would alter his opinion in anyway, Sullivan responded that an individual’s consumption of alcohol would not alter his opinion that the defendant failed to put into place reasonable security measures, and that the shooting on June 11, 2008, was reasonably foreseeable. In responding to defense counsel’s question on cross-examination regarding causation and whether the defendant’s actions in not providing security measures caused this incident, Sullivan further opined that "had there been security assets in place, both the plaintiffs and the defendant and the victims would have been addressed by the security personnel." FTR, 2/27/2018.
Based upon all of the above, the court concludes that there was sufficient evidence from which the jury could conclude that the defendant was negligent by failing to provide the requisite level of security in its parking lot; the defendant’s negligence was the proximate cause of, i.e., a substantial factor in causing the harm to the decedents and Perelli; the defendant’s failure to use reasonable care in guarding the safety of its patrons within its parking lot created or increased the likelihood of injury to a customer as a result of a criminal act within the parking lot; and the harm caused by Marquease Hill, was within the scope of the risk created by the defendant’s negligence. Accordingly, as there was sufficient evidence from which the jury could conclude as it did, the defendant’s motion for judgment notwithstanding the verdict is denied.
B
Motion to Set Aside
The defendant has moved to set aside the jury’s verdict on grounds that the verdict is contrary to the law as charged; is contrary to the weight of the evidence; the court erred in, precluding the testimony of defendant’s expert witness, Dr. Robert H. Powers; precluding toxicology records properly subpoenaed to court; ruling that the prior testimony of Andrew Guarino in the criminal trial was inadmissible; admitting the redacted federal affidavit of Martin Halprin; limiting defendant witnesses by side bar conference; and admitting evidence of Catwalk, LLC dissolution. The defendant further claims that the jury misapplied the law as to negligence, causation and superseding cause.
[A trial court may] set aside a verdict where it finds it has made, in its instructions, rulings on evidence, or otherwise in the course of the trial, a palpable error which was harmful to the proper disposition of the case and probably brought about a different result in the verdict." (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 276, 828 A.2d 64 (2003). "The setting aside of a verdict because of an error of the trial court should be exercised with great caution and never done unless the reviewing court is satisfied entirely that the error is unmistakable and unquestionably must have been harmful." Message Center Management, Inc. v. Shell Oil Products Co., 85 Conn.App. 401, 416, 857 A.2d 936 (2004). "A jury verdict should not be disturbed unless it is against [the weight of the] evidence or its manifest injustice is so plain as to justify the belief that the jury or some of its members were influenced by ignorance, prejudice, corruption or partiality ... [T]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable." (Internal quotation marks omitted.) Kervick v. Silver Hill Hospital, 309 Conn. 688, 717, 72 A.3d 1044 (2013).
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, 143 Conn.App. 15; 22, 68 A.3d 1177 (2013). "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, supra, 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, [Appellate Courts will] not disturb." (Internal quotation marks omitted.) Edmands v. CUNO, Inc., 277 Conn. 425, 453, 892 A.2d 938 (2006).
(i)
Contrary To Weight of Evidence
The court has addressed this claim in part II A of this decision and, as previously determined, concludes that there is sufficient evidence to support the jury’s verdict as to negligence, causation and superseding cause.
(ii)
General Verdict Rule
The court must point out that, although given the opportunity to do so, the parties did not submit interrogatories to the jury. Therefore, before the court addresses the defendant’s claims that the verdict was contrary to the law as charged, and of trial error, it must determine whether the general verdict rule applies.
" ‘[The general verdict] rule relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review. 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. Declining in such a case to afford appellate scrutiny of the appellant’s claims is consistent with the general principle of appellate jurisprudence that it is the appellant’s responsibility to provide a record upon which reversible error may be predicated ... In the trial court, the rule relieves the judicial system from the necessity of affording a second trial if the result of the first trial potentially did not depend upon the trial errors claimed by the appellant. Thus, unless an appellant can provide a record to indicate that the result the appellant wishes to reverse derives from the trial errors claimed, rather than from the other, independent issues at trial, there is no reason to spend the judicial resources to provide a second trial.’ (Citation omitted; internal quotation marks omitted.) Dowling v. Finley Associates, Inc., 248 Conn. 364, 371-72, 727 A.2d 1245 (1999).
" ‘The general verdict rule operates when a jury deliberates and returns a general verdict without special interrogatories. Under the general verdict doctrine, an appellate court will presume that the jury found every issue in favor of the prevailing party ... and decline further appellate review. It operates; inter alia, where there is a denial of the allegations of a complaint and the raising of a special defense by the defendant, and the claimed error affects one but not the other ... Where there was an error free path available to the jury to reach its verdict, and no special interrogatories were submitted showing which road the jury went down, any judgment rendered on such a verdict must be affirmed.’ (Citations omitted.) Jackson v. H.N.S. Management Co., 109 Conn.App. 371, 372-73, 951 A.2d 701 (2008).
" ‘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.’ Gajewski v. Pavelo, 229 Conn. 829, 836, 643 A.2d 1276 (1994)." Perez v. Cumba, 138 Conn.App. 351, 361-62, 51 A.3d 1156 (2012).
As the Appellate court explained in Fabrizio v. Glaser, 38 Conn.App. 458, 463, 661 A.2d 126 (1995), aff’d, 237 Conn. 25, 675 A.2d 844 (1996), "it is crucial for an appellant to provide us with a record that enables us, as a reviewing court, to determine which claims or defenses the jury resolved and in whose favor they resolved them. It is not the mere submission of interrogatories that enables us to make that determination; rather, it is the submission of properly framed interrogatories that discloses the grounds for the jury’s decision. Therefore, the efficacy of the interrogatories and the preclusion of the general verdict rule depends on their being framed in such a way that this court is able to determine the grounds for the jury’s decision." (Emphasis in original.) Accord Malaguit v. Ski Sundown, Inc., 136 Conn.App. 381, 388, 44 A.3d 901 (2012). (general verdict applicable because interrogatories proposed by plaintiff addressed only defendant’s first special defense and did not address defendant’s denial of allegations of the complaint or its second special defense); Mazuroski v. Hernovich, 42 Conn.App. 574, 576-77, 680 A.2d 1007 ("absent interrogatories that reveal the basis for the verdict" general verdict rule applies when defendant both denies plaintiff’s claims and raises special defenses), cert. denied, 239 Conn. 922, 682 A.2d 1003 (1996).
"A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury. Alternatively, if the action is in separate counts, a party may seek separate verdicts on each of the counts." (Internal quotation marks omitted.) Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993).
In the present case, the defendant denied the plaintiffs’ allegations of negligence and raised the special defenses of comparative negligence and superseding cause. The jury returned a verdict in favor of Halprin and found it 100% liable.
(iii)
Contrary To Law As Charged
The defendant claims that the jury’s verdict is contrary to the law as charged. The defendant does not articulate in its memorandum in support of its motion the grounds on which it claims that the jury’s verdict "was contrary to the law as charged." The defendant does not cite to any instructional error in the court’s charge and the court cannot determine the basis of the jury’s verdict since no interrogatories were submitted and, consequently, the court cannot determine the ground on which the jury’s verdict rests. Accordingly, the motion to set aside on grounds that the verdict was contrary to the law as charged is denied on the basis of the general verdict rule.
(iv)
Evidentiary Errors
"The general verdict rule operates to prevent an appellate court from disturbing a verdict that may have been reached under a cloud of error, but is nonetheless valid because the jury may have taken an untainted route in reaching its verdict." Monterose v. Cross, 60 Conn.App. 655, 661, 760 A.2d 1013 (2000). Thus, to determine if the general verdict rule precludes this court’s review of the defendant’s claims of evidentiary error, the court must determine whether the jury’s verdict depends on the evidentiary errors claimed by the defendant.
The defendant’s claimed evidentiary trial errors relate to the issue of who controlled the premises, and whether Marquease Hill’s actions were foreseeable, as well as the defendant’s special defense of comparative negligence. As previously discussed, the issue of who controlled the parking lot area at the time of the shooting was hotly disputed by Catwalk and Halprin. The federal affidavit of Halptin was introduced by the plaintiffs on both the issue of control, and on the issue of foreseeability.
In its special defense of comparative negligence, the defendant alleged that the decedents’ deaths and the plaintiff Anthony Perelli’s injuries were due to their own negligence in that the decedents’ and Perelli’s faculties were impaired by the voluntary consumption of alcohol. Dr. Powers was being offered to testify on the decedents’ and Perelli’s blood alcohol levels at the time of the shooting and whether they were intoxicated at the time of the shooting. Accordingly, since the jury’s verdict could possibly have been dependent upon the defendant’s claimed evidentiary errors, the general verdict rule does not preclude the court’s review of these claims.
"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 ... [Appellate Courts] 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 defendant of substantial prejudice or injustice." (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 109, 956 A.2d 1145 (2008).
The defendant claims that the court improperly precluded its forensic toxicologist expert, Dr. Robert H. Powers from testifying. Dr. Powers was being offered to testify that at the time of their autopsies, the decedent Ensley Myric had a blood alcohol content (BAC) of 0.16%, and the decedent Joseph Reed had a BAC of 0.20%. Dr. Powers was being offered to provide an opinion as to the meaning of these blood alcohol readings and as to whether the decedents’ were intoxicated at the time of the incident. Dr. Powers was also offered to opine that individuals with the reported BAC of the decedents would have been less able to perceive, react and respond to potentially hazardous or risky situations than they would have been in the absence of alcohol.
The court precluded Dr. Powers’ testimony on the basis that the defendant failed to comply with the necessary requirements to establish the proper evidentiary foundation, and therefore the testimony would have been speculative. In the present case, the autopsies were performed on June 12, 2008, the day after the decedents were killed. Samples of the decedents’ blood were sent to the lab for toxicology screens, on June 13, 2008; the day after the autopsies, and the autopsy reports were then prepared on July 1, and July 28, 2008. Both reports indicate that the decedents’ blood samples were received on June 13, 2008, however, neither of the autopsies or toxicology reports provide when the blood tests were actually performed. Powers did not conduct the blood testing, yet, he was offered to provide testimony; based solely on the BAC levels, that the decedents’ were intoxicated on the night of the shooting, and as a result of said intoxicated state, their judgment was impaired. Powers’ opinion on what the blood alcohol levels of the decedents were at the time of the shooting would have been speculative, since there was no way to determine what the level of intoxication was at that time. Therefore, this court concluded that any testimony from Powers as to the BAC or the effect on the decedents at the time of the shootings would have been speculative.
"To be intoxicated is something more than to be merely under the influence of, or affected to some extent by, liquor. Intoxication means an abnormal mental or physical condition due to the influence of intoxicating liquors, a visible excitation of the passions and impairment of the judgment, or a derangement or impairment of physical functions and energies. When it is apparent that a person is under the influence of liquor, when his manner is unusual or abnormal and is reflected in his walk or conversation, when his ordinary judgment or common sense are disturbed or his usual will power temporarily suspended, when these or similar symptoms result from the use of liquor and are manifest, a person may be found to be intoxicated. He need not be ‘dead-drunk.’ It is enough if by the use of intoxicating liquor he is so affected in his acts or conduct that the public or parties coming in contact with him can readily see and know this is so." Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349-50, 493 A.2d 184 (1985). Our Supreme Court in O’Dell v. Kozee, 307 Conn. 231, 259, 53 A.3d 178 (2012) noted that "a plaintiff could establish visible intoxication through blood alcohol content and expert testimony, as long as the expert properly took into account all pertinent facts relating to the individual consuming the alcohol ... Accordingly, we read Sanders, consistent with our earlier case law, as describing intoxication as a physiological state accompanied by visible or otherwise perceivable indicators." (Emphasis added.) Id.
Powers was offered to opine that based upon the BAC levels of the decedents, the decedents, on the night of the shooting, cognitively, would have been less able to perceive, react and respond to potentially hazardous or risky situations than they would have been in the absence of alcohol. However, Powers was not present to witness the decedents’ behavior or physical condition. Moreover, Powers had no evidence, i.e., statements from witnesses who observed the decedents’ behavior on the night of the shooting, upon which Powers could base his opinion that the decedents were intoxicated at the time of the shooting. Thus, he would be unable to render an opinion, absent speculation, as to whether the decedents were intoxicated or merely under the influence of alcohol. Accordingly, the court concludes that its preclusion of Dr. Powers’ testimony was appropriate and not an abuse of its discretion.
Even if the preclusion of Dr. Powers’ testimony was in error, the court concludes that the preclusion of his testimony was harmless." ‘Even if a court has acted improperly in connection with the introduction of evidence, reversal of a judgment is not necessarily mandated because there must not only be an evidentiary [impropriety], there also must be harm.’ Farrell v. Bass, supra, 90 Conn.App. at 811, 879 A.2d 516, citing Rokus v. Bridgeport, supra, 191 Conn. at 70, 463 A.2d 252. ‘The harmless [impropriety] standard in a civil case is whether the improper ruling would likely affect the result ... When judging the likely effect of such a trial court ruling, the reviewing court is constrained to make its determination on the basis of the printed record before it ... In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless.’ (Internal quotation marks omitted.) Kalams v. Giacchetto, 268 Conn. 244, 249-50, 842 A.2d 1100 (2004); Dinan v. Marchand, 279 Conn. 558, 567, 903 A.2d 201 (2006) (same). ‘Moreover, an evidentiary impropriety in a civil case is harmless only if [the reviewing court] ha[s] a fair assurance that it did not affect the jury’s verdict.’ (Internal quotation marks omitted.) Hayes v. Camel, 283 Conn. 475, 489, 927 A.2d 880 (2007).
" ‘A determination of harm requires [the court] to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial. (Emphasis added.) Vasquez v. Rocco, 267 Conn. 59, 72, 836 A.2d 1158 (2003). Thus, [the court’s] analysis includes a review of: (1) the relationship of the improper evidence to the central issues in the case, particularly as highlighted by the parties’ summations; (2) whether the trial court took any measures, such as corrective instructions, that might mitigate the effect of the evidentiary impropriety; and (3) whether the improperly admitted evidence is merely cumulative of other validly admitted testimony ... Prentice v. Dalco Electric, Inc., [ 280 Conn. 336, 358, 907 A.2d 1204 (2006), cert. denied, 549 U.S. 1266, 127 S.Ct. 1494, 167 L.Ed.2d 230 (2007)); see also id., at 360-61, 907 A.2d 1204 (noting that during summation, plaintiff described issue encompassing improperly admitted scientific evidence as critical and emphasized that evidence); Hayes v. Gaspers, Ltd., 90 Conn.App. 781, 800, 881 A.2d 428 (cautionary instruction addressed prejudicial impact of expert’s testimony that included arguably improper discussion of pending federal action), cert. denied, 276 Conn. 915, 888 A.2d 84 (2005); Raudat v. Leary, 88 Conn.App. 44, 52-53, 868 A.2d 120 (2005) (improperly admitted expert testimony was harmful error when it related to central issue in case, namely, condition of purchased horse); DeMarkey v. Fratturo, [80 Conn.App, 650, 656-57, 836 A.2d 1257 (2003) ] (improperly admitted hearsay evidence about cause of motor vehicle accident was harmless because it was cumulative of properly admitted testimonial and diagram evidence). The overriding question is whether the trial court’s improper ruling affected the jury’s perception of the remaining evidence. Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990).’ (Internal quotation marks omitted.) Hayes v. Camel, supra, 283 Conn. at 489-90, 927 A.2d 880." (Emphasis added.) Sullivan v. Metro-North Commuter R. Co., 292 Conn. 150, 164, 971 A.2d 676 (2009).
The jury heard evidence regarding how much the decedents drank on the evening of the shooting through the testimony of Perelli. The defendant claims that Dr. Powers’ testimony was crucial to impeach Perelli’s testimony on how much they all were drinking on the night of the shooting. While Perelli did change his story three or four times on how much they drank on the evening of the incident, the defendant was able to effectively cross examine Perelli on that issue. There were statements Perelli made to the police, in his deposition testimony and at the criminal trial, that were inconsistent with his testimony at trial regarding how much they all drank on the night of the shooting, which the defendant was able to bring out during the trial to impeach his testimony. Dr. Powers’ testimony was therefore not necessary to impeach Perelli’s credibility, and thus" ‘cumulative of other validly admitted testimony.’ (Internal quotation marks omitted.) Prentice v. Dalco Electric, Inc., supra, 280 Conn. at 358, 907 A.2d 1204." Sullivan v. Metro-North Commuter R. Co., 292 Conn. 150, 164, 971 A.2d 676 (2009).
Finally, the court reviewed the summations of the attorneys, and the attorneys for both defendants focused on the issues of possession and control and foreseeability in their summations, highlighting the importance of its existence or lack thereof to the jury’s determination of negligence. See id., at 164. The court therefore cannot conclude that the preclusion of Dr. Powers’ testimony would have made a difference in the jury’s verdict. Accordingly, the defendant’s motion to set aside the verdict on the basis that the court erroneously precluded Dr. Powers’ testimony is denied.
Oral argument on plaintiffs’ motion in limine to preclude Dr. Powers’ testimony was argued on February 13, 2018, approximately two weeks prior to the commencement of evidence in the case. During oral argument, the court allowed the defendant the opportunity to subpoena personnel from the medical examiner’s office to testify at trial, which might have alleviated the foundational issues relating to Dr. Powers’ testimony, however the defendant chose not to do so.
The defendant claims that the court improperly precluded the prior criminal testimony of Andrew Guarino. The defendant sought to introduce Guarino’s testimony on the issue of how much the decedents’ were drinking on the night of the shooting and the timing of the decedents’ consumption of alcohol.
"Section 8-6(1) of the Connecticut Code of Evidence provides that the prior testimony of an unavailable witness may be admitted at a subsequent trial if the issues in the prior proceeding were ‘substantially similar’ to those in the proceeding at which the testimony is being offered and the opposing party had an opportunity to develop that testimony at the earlier proceeding. See State v. Rodriguez, 68 Conn.App. 303, 311, 791 A.2d 621 (proponent of former testimony must satisfy two-part test: witness is unavailable and prior testimony was reliable), cert. denied, 260 Conn. 920, 797 A.2d 518 (2002)." Maio v. City of New Haven, 326 Conn. 708, 723, 167 A.3d 338 (2017). In this case, there is no challenge to the defendant’s claim that Guarino was unavailable. Therefore the court must determine whether the issues in the prior criminal proceeding were substantially similar to those in the present proceeding and whether the opposing party had an opportunity to develop that testimony at the earlier proceeding.
The reliability prong of the test requires that the issues testified about in the prior proceeding must be the same or substantially the same as the issues testified about in the present proceedings. State v. Parker, 161 Conn. 500, 503-04, 289 A.2d 894 (1971). Also, the party seeking the admission of the prior statement must demonstrate that the adverse party had the opportunity to conduct a full and complete examination of the declarant in regard to the statement. See State v. Atkins, 57 Conn.App. 248, 255, 748 A.2d 343, cert. denied, 253 Conn. 916, 754 A.2d 164 (2000); see also State v. Malone, 40 Conn.App. 470, 476-79, 671 A.2d 1321 (discussing admission of prior inconsistent statements in light of criminal defendant’s right, under state, federal constitutions to cross examine adverse witnesses), cert. denied, 237 Conn. 904, 674 A.2d 1332 (1996).
In the present case, both Ellis and Perelli, witnesses to the shooting, and material witnesses in the criminal trial, testified in the plaintiff’s case in chief. The defendants effectively cross examined both Ellis and Perelli and brought out inconsistencies in their testimony in the present trial, with prior statements they made to the police, in deposition testimony they gave, and in their testimony during the criminal trial. Counsel for the plaintiffs were able to come back on redirect to rehabilitate their testimony. Here, defendants sought to introduce the prior criminal testimony of Andrew Guarino to provide a time line as to when he, the decedents and Perelli arrived at the Fireside Café, and the amount of drinks they had during that time, which testimony is inconsistent with Perelli’s testimony in the present trial.
The issues in the criminal trial were not the same as the issues presented in the present trial. The prior trial was a criminal murder trial and the present case is a premises liability case. The issues presented in each case were not substantially similar. Defendant cites Maio v. City of New Haven, supra, 326 Conn. 708 in support of its claim that the court should have permitted Guarino’s prior testimony. Although the prior proceeding in Maio was a criminal trial, and the subsequent proceeding at which the defendant sought to introduce the former testimony of the witnesses was a civil trial, the issues in the two proceedings were substantially similar. In addition, the plaintiff in Maio was present at the prior criminal proceeding and was able to cross-examine the witnesses. Maio had the opportunity for a complete and full examination of both witnesses in the criminal trial, and therefore their former testimony possessed adequate indicia of reliability However, unlike in Maio, the issues in the present case were not substantially similar to the issues in the criminal proceeding. Moreover, the plaintiffs were not present at the prior criminal proceeding, and therefore did not have the opportunity for a complete and full examination of Guarino to develop Guarino’s testimony in the prior criminal proceeding. Thus, Guarino’s former testimony did not possess adequate indicia of reliability.
It was clear from the testimony of both Perelli and Ellis elicited by defense counsel on cross examination, that there were serious inconsistencies in their statements made to the police, during their criminal trial testimony and the testimony they gave in the present case. Plaintiffs’ counsel had the opportunity on redirect to address those inconsistencies. If this court were to have admitted Guarino’s former testimony, plaintiffs’ counsel would not have had the same opportunity as they did in addressing Ellis’ and Perelli’s inconsistent testimony, to likewise address the testimony of Guarino, which was inconsistent with the testimony Perelli gave in the present case. "The party seeking the admission of the prior statement must demonstrate that the adverse party had the opportunity to conduct a full and complete examination of the declarant in regard to the statement. See State v. Atkins, 57 Conn.App. 248, 255, 748 A.2d 343, cert. denied, 253 Conn. 916, 754 A.2d 164 (2000); see also State v. Malone, 40 Conn.App. 470, 476-79, 671 A.2d 1321 (discussing admission of prior inconsistent statements in light of criminal defendant’s right, under state, federal constitutions, to opportunity to cross examine adverse witnesses), cert. denied, 237 Conn. 904, 674 A.2d 1332 (1996)." State v. Rodriguez, 68 Conn.App. 303, 311, 791 A.2d 621(2002). Thus, the indicia of reliability was not met and on that basis the court properly precluded the prior testimony of Guarino. Accordingly, the motion to set aside on this ground is denied.
The defendant argues that the court improperly admitted the affidavit of Martin Halprin. The court properly allowed the affidavit of Halprin as an admission pursuant to the Conn. Code of Evidence § 8-3(1) which provides in relevant part: "The following are not excluded by the hearsay rule, even though the declarant is available as a witness: A statement that is being offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity ... [and] (C) a statement by a person authorized by the party to make a statement concerning the subject." The court properly admitted Halprin’s affidavit pursuant to the hearsay exception of the Conn. Code of Evidence.
*20 With regard to witnesses the defendant claims were limited by the court, the defendant fails to identify what witnesses were limited and how they were limited. The defendant has not provided the court with any factual basis or legal analysis regarding this claim. "[Our Supreme Court] repeatedly ha[s] stated that [the court is] not required to review issues that have been improperly presented to [the] court through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... [When] a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned." (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 124, 956 A.2d 1145 (2008); accord State v. T.R.D., 286 Conn. 191, 213-14 n.18, 942 A.2d 1000 (2008). The court therefore considers this issue abandoned.
The defendant claims that the court improperly allowed evidence of Catwalk, LLC’s dissolution which was the subject of a motion in limine. Motions in limine (# 264, # 286) were filed by the defendants, Halprin and Catwalk to preclude testimony on the nature of the defendants business and financial status and affairs. Specifically, Halprin sought to preclude testimony "concerning the financial status of the Defendant and/or its principal(s), current or former, including but not limited to value of the subject real estate or rental income." Halprin, Mot. in Limine, # 264. There is no mention in the motion about the preclusion of testimony regarding evidence of Catwalk’s dissolution. Catwalk’s motion in limine specifically requested the court to preclude testimony on "Defendant Catwalk, LLC’s business and financial affairs including, but not limited to: weekly, nightly, monthly, income, charges for entertainment, cover charge, beverage and food or the sale of alcoholic beverages within the Club." Catwalk Mot. in Limine # 286. The motions were argued on February 13, 2018. The plaintiffs agreed that they would not get into the personal financial status of the defendants. But that they should be allowed to inquire about the terms of the lease regarding the amount of rent, and whether any amount of the rent was spent on security. Counsel for Halprin had no objection to plaintiffs’ inquiry. The court therefore denied Halprin’s motion in limine (# 264), however, it limited the plaintiffs’ inquiry to the terms of the lease and how much of the rental income from Catwalk was spent on security. Catwalk’s motion was granted by agreement.
In its review of the record and the testimony of the witnesses, Christine Sempe did indeed testify on direct examination regarding the dissolution of Catwalk, and plaintiffs’ counsel commented on this testimony during his closing argument. With full knowledge of the court’s rulings on the motions in limine, neither counsel for Halprin, nor counsel for Catwalk objected to Sempe’s testimony or counsel’s comments during closing argument. See FTR, 2/28/2018, 3:45:59-3:47:19; 3/7/2018, 11:11:40. "Ordinarily, [Appellate Courts] ‘will not review an issue that has not been properly raised before the trial court.’ Bell Atlantic Mobile, Inc. v. Dept. of Public Utility Control, 253 Conn. 453, 485, 754 A.2d 128 (2000); see also Practice Book § 60-5. The standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. ‘In order to preserve an evidentiary ruling for review, trial counsel must object properly ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling.’ (Citations omitted; internal quotation marks omitted.) State v. Bush, 249 Conn. 423, 427-28, 735 A.2d 778 (1999); see also Practice Book § 5-5." Chebro v. Audette, 138 Conn.App. 278, 286, 50 A.3d 978 (2012). Accordingly, the defendant waived any objection to the admission of this evidence. The motion to set aside on this ground is therefore denied.
III
CONCLUSION
For all of the foregoing reasons, the defendant’s motions for judgment notwithstanding the verdict and to set aside the verdict are denied.