Opinion
CV146048405
01-13-2017
Gary Pellegrino v. Joan Reyes dba Hair Pazzaz
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE (#130)
Angela C. Robinson, J.
The plaintiff moves to open and/or set aside the judgment entered by the court (Robinson, J.) in November 2016 for two reasons. (Motion to Open and/or Set Aside Judgment #130, Memorandum in Support #131, and Supplemental Memorandum in Support of Motion to Open and/or Set Aside #135.) First, the plaintiff claims that it was error to strike the proffered expert witness testimony. Second, the plaintiff argues that the court erred in refusing to allow the plaintiff to proceed to the jury on a theory of res ipsa loquitur . The defendant filed an Objection, along with a Memorandum in Support of Objection (#s132, and 133), in which it contends that the testimony of the plaintiff's expert was properly stricken; and that res ipsa loquitur does not apply to the facts in this case. The parties argued their positions before this court at a hearing which took place on Monday, January 9, 2017.
For reasons more fully set forth herein, the court denies the motion to open and/or set aside the judgment.
Some pertinent facts in this case are the following.
(1) In the operative complaint which is the original complaint, filed on July 15, 2014, the plaintiff alleges four specific allegations of negligence on the part of the defendant, including that: a) defendant failed to erect appropriate warnings of the defective and dangerous condition; b) failed to properly inspect the door knob; c) allowed door handle to be dangerous for use; and d) failed to remedy door handle.
(2) The defendant denied the allegations of negligence; and asserted the special defense of contributory negligence, in its Answer to which the plaintiff filed a denial in his Reply.
(3) A Trial Management Conference took place in September 2015, but no Trial Management Reports were filed at or before that conference, after which the plaintiff filed a Motion to Inspect, which was granted over the Objection of the defendant.
(4) An expert retained by the plaintiff inspected the defendant's premises in December 2015.
(5) Subsequent to the expert's inspection of the defendant's property, the expert was deposed by the defendant.
(6) A Second Trial Management Conference took place on November 1, 2016. The parties each filed Trial Management Reports. In the plaintiff's Report, dated October 27, 2016, he referred to the operative Complaint, the Answer and Special Defense and the Reply.
(7) Counsel selected the jury from November 8 through November 9, 2016.
(8) On November 14, 2016, in Opposition to the Motion to Preclude, the plaintiff, for the first time, indicated his intention to rely upon the doctrine of res ipsa loquitur .
(9) On November 15, 2016, Plaintiff's Counsel filed a Motion to Amend the Complaint to add an allegation of cervical injury to paragraph 5. (10) Evidence commenced in the trial on November 15, 2016, after the court instructed plaintiff's counsel that he would have to elect a theory for the case: either claiming specific negligence; or relying on the doctrine of res ipsa loquitur .
(11) The defendant submitted Requests to Charge on November 15, 2016 regarding lack of notice of a defect; and regarding the defendant not being a guarantor of the safety of the plaintiff.
(12) The plaintiff did not submit any Requests to Charge.
(13) Plaintiff's counsel represented to the court in pretrial argument on November 15, 2016, that his client and his expert were providing the only evidence he intended to present regarding the alleged defect and the cause of the alleged injury.
(14) The court deferred ruling on the Motion to Preclude, but informed counsel that based on their arguments and a review of the Expert Disclosure, the court was disinclined to grant the Motion to Preclude.
(15) At trial, plaintiff's counsel elected to pursue the claims of specific negligence.
(16) The plaintiff testified that he received an electrical shock when he grabbed the doorknob to enter the establishment owned and operated by the defendant on December 19, 2013.
(17) The plaintiff testified that he reported this shock to the defendant.
(18) The plaintiff testified that the defendant told him that others had been shocked by the doorknob before.
(19) Plaintiff's expert, an electrician, testified that he tested the doorknob on December 7, 2015 and found it absent of electrical current.
(20) Plaintiff's expert testified that on December 7, 2015, he examined the ceiling and was shocked when he touched the metal grid.
(21) Plaintiff's expert testified that on December 7, 2015, behind the ceiling tiles, he located several exposed wires.
(22) Plaintiff's expert testified that he did not know the condition of the ceiling in December 2013; nor did he offer testimony regarding how long the exposed wires had been present behind the ceiling tiles.
(23) Plaintiff's expert testified that the door frame was close but not touching the ceiling grid when he did his inspection on December 7, 2015.
(24) Plaintiff's expert testified that it was his opinion that the exposed wires caused the door to become electrified and shock the plaintiff in 2013.
(25) Plaintiff's expert could not opine how the electricity arced from the ceiling to the door based on a reasonable degree of probability.
(26) Following the testimony of the plaintiff's expert, the court granted the motion to preclude.
(27) Plaintiff's counsel sought to proceed under the doctrine of res ipsa loquitur, a request the court denied.
I.
The plaintiff first seeks to have the judgment opened and set aside because he claims that the court erred in striking the testimony of his expert witness, Richard Bettley. The plaintiff specifically relies upon Mr. Bettley's testimony that: he had been an electrician for approximately thirty-five years; that the ceiling grid in the defendant's property was energized with 120 volts of electricity in December 2015; that the ceiling should not have been energized in December 2015; that the ceiling grid was within 32nd of an inch of the metal door frame in December 2015; that the ceiling grid probably energized the door frame transiently; that this transient condition occurred on December 19, 2013; and that the only way the electricity could have traveled to the door handle was from the ceiling grid. The expert conceded that he did not witness this transient condition when he was inspecting the property in December 2015. He acknowledged that the doorknob was not defective when he examined it. He also conceded that he was not able to explain the scientific phenomenon of " arcing"; and that he did not witness any evidence of it during his inspection.
Because the court concluded that the witness was not qualified to testify regarding whether the electricity could and did travel from the ceiling grid and the door frame, the court struck the testimony.
The court must perform a gate-keeping function when expert evidence is involved. And, evidentiary rulings regarding the admissibility of expert evidence are to be undisturbed absent an abuse of discretion. " Concerning expert testimony specifically, 'the trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court's decision will not be disturbed . . . Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill of knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues." Prentice v. Dalco, 280 Conn. 336, 342, 907 A.2d 1204 (2006).
The plaintiff urges the court to hold his witness to a lesser, non-scientific standard because he claims the testimony of Mr. Bettley was not scientific. He claims that electricity is not a scientific subject. And, he claims that Mr. Bettley could testify and opine based on his years of experience as an electrician. Yet, plaintiff's counsel provides no caselaw, authority or references for this assertion that Bettley, an electrician, is qualified to offer opinion evidence regarding arcing of electricity from the ceiling to the door on December 19, 2013. He only refers to and recites well-established precedent regarding the role and function of the court in handling expert evidence issues; and the fact that scientific and non-scientific expert evidence are subjected to different standards.
As our courts have noted, " the term 'scientific evidence' covers a large variety of subjects . . . Accordingly, . . . it is impossible to formulate a specific, clearly defined test that provides judges with a precise, complete list of factors to consider in evaluation the entire class of scientific evidence." State v. Porter, 241 Conn. 57, 78-79, 698 A.2d 739 (1997).
Because neither party provided direction on this matter, to determine whether opining on the arcing phenomenon of electricity introduces a scientific inquiry or not, the court first looked to the definition and meaning of the word electricity; and then to the nature of the proffered testimony.
According to Merriam Dictionary, the definition of electricity is:
" A. A fundamental form of energy observable in positive and negative forms that occurs naturally . . . or is produced . . . and that is expressed in terms of the movement and interaction of electrons: electric current or power.
" B. A science that deals with the phenomena and laws of electricity." (Emphasis added.) Www.merriam-webster.com
Additionally, the U.S. Government Energy Information Association describes electricity as a science. " Electricity is the flow of electrical power or charge. Electricity is both a basic part of nature and one of the most widely used forms of energy . . . To understand electricity, it's important to know something about atoms. Atoms are the building blocks of the universe . . ." EIA website, Energy Kids. Www.eia.gov/kids/energy
Addressing the nature of the testimony, Mr. Bettley provided the plaintiff with the needed testimony regarding a potential source of electricity by locating exposed wires behind ceiling tiles in December 2015. He also provided the plaintiff with testimony that these wires, which were close but not touching the door frame, were the cause of the electrical current to the plaintiff. When asked how the current went from the ceiling to the frame, Mr. Bettley opined that the current " arced, " though he conceded that he found no visible evidence of arcing. He testified that he did not know the conditions on the day of the alleged incident; and that he did not know the history of repairs and inspections in the property. When asked to explain the process of " arcing" he could not, saying he was not a scientist.
Were Mr. Bettley merely offering his observations, as a practicing electrician, perhaps the court would not have stricken his testimony. A nurse, for instance, would be qualified to testify as to a patient's blood pressure reading on a particular day. But, that nurse would probably be precluded from opining that the patient's Blood Pressure was the same number on a day two years earlier. Similarly, while Bettley was certainly competent to testify as to the electric current found behind the ceiling tiles in December 2015, his offered opinion that a transient condition called arcing caused the door knob to be energized in 2013, was outside the scope of his expertise and was without sufficient explanation or foundation.
The court properly struck his testimony. First, he did not observe any conditions on the defendant's property in 2013. Second, did not state that he had an understanding of what the conditions in the ceiling were in 2013. Third, he was not able to state, scientifically, how arcing occurs, or how often it occurs, or the conditions necessary for it to occur. Testifying that one observes exposed and energized wires is very different from explaining how those wires would produce a current in an object that they were not touching.
In performing its gate-keeping function, required by law, this court concluded that the witness (who testified mostly in terms of what could have happened or what might have happened) was not qualified to give the opinion testimony that he gave.
There is an additional factor to balance in this equation, and that is the effect of the admission of Bettley's testimony on the defendant. It is axiomatic that evidence offered against an opposing party is prejudicial to that party. However, if the court allowed the admission of Bettley's testimony, which was offered in support of claims of specific negligence, to be considered, the defendant would have been unduly prejudiced. One of the facts the jury was called upon to determine was whether the plaintiff had, in fact, received an electrical shock in December 2013 when he touched the doorknob. Hearing facts that the ceiling was electrified with exposed wires in 2015, could unduly influence the jury to believe (without more facts) that the wires must have been present in 2013; and that this must have been the way that the plaintiff was shocked in 2013. In other words, the evidence of exposed wires in 2015, standing alone, could unduly and prejudicially influence the jury in deciding a critical, disputed fact--whether the plaintiff was shocked when he grabbed the doorknob. For this reason, too, the court struck the testimony when the plaintiff rested after having only called two witnesses--the plaintiff and his expert.
II.
This case presents the fact pattern of a premises liability case. Therefore, because Pellegrino was an invitee under Connecticut law " the defendant owed . . . a duty to maintain [its] premises in a reasonably safe condition . . ." (Citation omitted.) Palmieri v. Stop and Shop, 103 Conn.App. 121, 123, 927 A.2d 371 (2007). The required elements for such cases are proof of: " (1) the existence of a defect, (2) that the defendant knew or in the exercise of reasonable care should have known about the defect, and (3) that such defect had existed for such a length of time that the [defendant] should, in the exercise of reasonable care, have discovered it in time to remedy it." (Internal quotation marks and citations omitted.) Id. at 123-24.
In order to present a prima facie case for this negligent action, as pled by the plaintiff, he must present evidence that negligence of the defendant relating to the alleged defect proximately caused him injury. The plaintiff asserted specific allegations of negligence in his complaint that the defendant failed to warn of the energized doorknob or do anything to repair it.
Because the plaintiff opted to pursue his specific negligence claims, the court first looks to see whether he presented a prima facie case in support of his specific claims of negligence before he rested. In order to support his specifically alleged claims he needed to present evidence of a defect, notice of a defect and a failure in relation to that defect. The plaintiff failed to present any evidence, direct or circumstantial that the doorknob or door handle was defective on December 19, 2013. Construing the evidence in the light most favorable to the plaintiff, he presented evidence that the doorknob could have been defective in December 2015. His expert identified improper wiring as the defect, but then failed to present proper evidence to connect the defective wiring to the alleged incident.
During his examination the plaintiff's expert was asked and answered the following questions.
Q: All right. So, in other words when you checked down below, there was no electrical current at all; but when you up checked above, you found that there was a defect.
A: I did.
Q: And you determined in your mind the defect was the exposed wires that you showed the jury. Is that right?
A: Yes.
Direct Examination of Bettley
Q: So, let's go back. We have, as you noted, an alleged defect that was created at some point in time. Is that right?
A: Yes.
Q: So, in other words, whenever those wires were installed, in your mind, that would be a defect in the property.
A: Defect in the wiring, yes.
Q: Okay; and we don't know when it occurred. Is that right?
A: . . . when the . . .
Q: Wiring occurred.
A: When the wiring was installed, you're . . .
Q: Yes.
A: asking? I do not know.
Cross Examination of Mr. Bettley
Further, the expert was not able to testify to a reasonable degree of probability, scientifically, that the defect, the faulty wiring, caused the knob to the energized on December 19, 2013. He did give an opinion that this is what happened. But, the plaintiff failed to establish that he was competent or qualified to render this opinion.
Without proof of a defect in December 2013, the plaintiff failed to present a prima facie case; and the defendant was entitled to a directed verdict.
Assuming that the plaintiff is relying on his own statement that he was shocked by the doorknob as proof of a defect, he failed to present evidence of what the defendant failed to do. Though he alleged a failure to warn and a failure to remedy, he offered no evidence in support of these assertions. Finally, assuming that the duties could be inferred from the fact of the faulty wiring, the plaintiff lacked evidence to establish a proximate cause of the incident. He presented no competent evidence that the faulty wiring existed in December 2013, or that it energized the door on December 19, 2013. For all these reasons, the court properly directed a verdict and entered judgment for the defendant.
III.
Next, the plaintiff claims that the court erred in failing to allow him to rely upon the doctrine of res ipsa loquitur . The defendant argues that this doctrine is inapplicable because whether or not the plaintiff was in fact injured is in dispute.
A.
First, the plaintiff may not pursue specific claims of negligence if he wants to use the doctrine of res ipsa loquitur . See, Queen v. Gagliola, 162 Conn. 164, 170, 292 A.2d 890 (1972). Where a plaintiff alleges and introduces specific acts of negligence by the defendant, he is not entitled to a res ipsa loquitur instruction. Id., and Pineau v. Home Depot, 45 Conn.App. 248, 695 A.2d 14 (1997). Therefore, because the plaintiff elected to proceed on his complaint which alleged specific allegations of negligence, he waived his right to pursue a theory based upon res ipsa loquitur .
B.
Notwithstanding these specific claims, on the first day of the trial, the plaintiff also asserted his right to rely on the res ipsa loquitur doctrine, but did not, file a Request to Charge on res ipsa loquitur or a Request to Amend his Complaint to add that theory.
As noted earlier in the fact section, the plaintiff filed an Amended Complaint on the first day of evidence, adding an allegation of damages.
Therefore, the court denies the plaintiff's motion because he failed to put the court or opposing counsel on notice that he intended to rely upon the res ipsa loquitur doctrine. There is an inherent unfairness in a party changing the theory of his case on the eve of trial. Not only is this unfair, it is prescribed by law and our rules of Practice. See, White v. Mazda Motor of America, 313 Conn. 610, 628, 99 A.3d 1079 (2014) (Plaintiff would not be allowed to posit a new theory of in the products liability case in opposition to a motion for summary judgment or on appeal, even when the theory did not present a new cause of action. Helpful discussion about the importance of the plaintiff giving notice of reliance on res ipsa loquitur at 626-27).
Pursuant to the Civil Jury Trial Management Order, Revised March 11, 2011, " Preliminary requests to charge, proposed verdict forms and any requests for jury interrogatories must be filed before the start of evidence, unless otherwise ordered by the court at the trial management conference or by the assigned trial judge." There were no orders obviating the need for a filed Request to Charge on the first day of evidence. Therefore, pursuant to the Standing Order, the court was empowered to take appropriate action for failure to comply with the order, including " excluding evidence . . . dismissing the case or entering a nonsuit or default against the party failing to comply."
In his motion, the plaintiff argues, as he did before and during the trial, that he was entitled to rely upon the doctrine of res ipsa loquitur even though he had put neither the court, nor opposing counsel on notice that he intended to do so. Although the law does not require the plaintiff to plead his intention to utilize the doctrine, the law does require some notice to be provided, particularly when the operative complaint states allegations of specific negligence.
The facts in this case have remained largely unchanged since its inception. Plaintiff's expert inspected the property, and presumably reached his conclusions in December 2015 or shortly thereafter. Therefore, there is no reasonable explanation for the delay in the disclosure of the plaintiff's intention to rely on the doctrine of res ipsa loquitur . The plaintiff waited until the case had had a Trial Management Conference, the lawyers had selected a jury and all the trial participants, including the judge, lawyers, parties and jury were in court prepared to begin the evidence, to argue his right to rely on this new theory for the case.
This court concurs with the thoughtful and persuasive reasoning of the court (Scholl, J.) in Hargrove v. Price Chopper, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 126028482 (October 4, 2013) [56 Conn.L.Rptr. 895, ]. In that case the court held that:
As to the . . . claim that [the plaintiff is not required to] allege res ipsa loquitur as an independent count, the court disagrees. In Schurgast v. Schumann, 156 Conn. 471, 474, 242 A.2d 695 (1968), the Court stated that: " In the second Count, Schurgast alleges facts for the obvious purpose of relating the essential elements of the doctrine of res ipsa loquitur . Although no demurrer was addressed to this count, it should be noted that, since there is no allegation of negligence on the part of the defendants, it fails to set forth a cause of action." Yet the Court held that " The judgment obviously was based on the first count, wherein Schurgast alleged specific acts of negligence by the defendants. There was no direct evidence of any particular negligent act by any of the defendants, and the trial court made no finding to that effect. If the case is a proper one for the application of the doctrine of res ipsa loquitur, the plaintiff by pleading the particular cause of the accident, in no way loses his right to rely thereon." Id. at 479. Thus Schurgast implies, as many courts have held, that res ipsa loquitur is not a separate cause of action. But yet later appellate cases indicate that in order to take advantage of the doctrine it must be pled by the plaintiff. In Malvicini v. Stratfield Motor Hotel, Inc., 206 Conn. 439, 538 A.2d 690 (1988), the Court noted that the plaintiff pled the basis of a res ipsa loquitur claim in his amended complaint but had failed, at trial, to submit sufficient evidence to allow the jury to find the instrumentality that caused the injury was in the exclusive control of the defendants . . .
" In Gilbert v. Middlesex Hospital, 58 Conn.App. 731, 755 A.2d 903 (2000), the court noted that the plaintiff had alleged res ipsa loquitur against certain defendants in her complaint but deleted any allegations of res ipsa loquitur in her revised complaint. Therefore, the court concluded that since 'the amended complaint contained no allegations concerning res ipsa loquitur, and because the plaintiff offered direct evidence of the defendants' negligence at trial, an instruction on res ipsa loquitur was not warranted . . . The court pointed out that the complaint must put the defendants on notice of the claims against him and only those issues raised in the latest complaint can be tried before the jury . . . In light of the Supreme and Appellate Court's indication that in order to present a res ipsa loquitur claim the plaintiff must put the defendant on notice of it . . ." the court denied the motion to strike that was before it in that case.
As the court indicated in Hargrove, the plaintiff must give notice of his intention to, rely upon the doctrine of res ipsa loquitur . The first time the plaintiff indicated this intention was on the eve of the first day of the trial, right before evidence was to commence.
Based upon these facts, the court holds that it was proper to preclude the plaintiff from proceeding in reliance on the doctrine of res ipsa loquitur . " If a plaintiff pleads only a specific negligence claim, and does not also plead res ipsa loquitur, the defendant has no reason to believe that the plaintiff's claim is anything other than a garden variety specific negligence claim." White v. Mazda, supra, 313 Conn. at 628. Allowing the plaintiff to proceed on a theory of which he had given no one notice would be unjust and amount to trial by ambush. The failure to put the court or opposing counsel on notice of his intention to rely upon that doctrine is determinative because it violates established law and the existing Civil Jury Trial Standing Order. Accordingly, it was proper for this court to direct the verdict and enter judgment for the defendant.
In an effort to provide the plaintiff with latitude, the court offered plaintiff's counsel the opportunity to elect, before opening statements, whether he wished to proceed on his theory of direct negligence or relying on the doctrine of res ipsa loquitur . In hindsight, had the plaintiff elected the latter, the court would have unduly prejudiced the defendant, who had not had the opportunity to prepare for that theory of the case. Therefore, the court should have declined to permit the plaintiff to proceed using res ipsa loquitur . Because the result would have been unchanged, the court concludes that the defendant was not prejudiced by what would have been an improper ruling.
C.
Turning to the substantive merits of the plaintiff's arguments, it is a matter of law for the court to determine whether the doctrine of res ipsa loquitur is applicable in any given case. Giles v. New Haven, 228 Conn. 441, 636 A.2d 1335 (1994); and Barretta v. Otis Elevator, 242 Conn. 169, 698 A.2d 810 (1997). In order to establish an entitlement to rely upon the doctrine, the plaintiff's case must meet three criteria. " First, the situation, condition or apparatus causing the injury must be such that in the ordinary course of events no injury would have occurred unless someone had been negligent. Second, at the time of the injury, both inspection and operation must have been in the control of the party charged with the neglect." Barretta v. Otis Elevator, supra 242 Conn. at 173-74. And, third, " the injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured." Malvicini v. Stratfield Motor Hotel, Inc . 206 Conn. 439, 441-42, 538 A.2d 690 (1988).
The doctrine of res ipsa loquitur " is a rule of common sense and not a rule of law which dispenses with proof of negligence. It is a convenient formula for saying that a plaintiff may, in some cases, sustain the burden of proving that the defendant was more probably negligent than not, by showing how the accident occurred, without offering any evidence to show why it occurred." (Emphasis in original; citations omitted.) Barretta v. Otis, supra, 242 Conn. at 173. Therefore, in cases where there has been a clear showing of " how " the accident occurred (ie., elevator chain broke, causing the elevator car carrying plaintiff to fall, wherein she was injured-- Giles v. City of New Haven, supra ; and glass fell from window onto passerby-- Feeney v. New York Waist House, 105 Conn. 647, 136 A. 554 (1927)); there may not be the need to show " why " the accident occurred.
In Giles, for example, the plaintiff was unable to offer any evidence to explain " why " the elevator chain malfunctioned. But, the court held that this was unnecessary. In Feeney, the plaintiff was not required to proffer evidence as to " why " the window fell. He only needed to establish that the window fell onto him as he walked on the sidewalk. In these cases, the fact-finder was not required to determine whether an injury-causing accident had occurred, because that was not in dispute.
Contrast this with the holding in Barretta v. Otis Elevator, supra, at 177-78, which concluded that the plaintiff, who was injured on an escalator, was not entitled to a res ipsa loquitur instruction because there was an unresolved causation question along with evidence which indicated that the accident could have happened absent anyone's negligence.
Or, consider the holding in Malvicini v. Stratfield Motor Hotel, Inc., supra, 206 Conn. 439, a case somewhat analogous to the present one. In Malvicini, the plaintiff was staying in the defendant's hotel when he " allegedly suffered" injury from shower water that was too hot. Id. at 440. The plaintiff requested a res ipsa loquitur charge because " water from a shower does not ordinarily become scalding hot in the absence of someone's negligence." Id. at 443. The Supreme Court upheld the trial court's decision, refusing to give the res ipsa loquitur charge because it found the second required element, control, missing. Because the plaintiff presented no evidence " of any mixing valve or mixing device in this shower or the faucets, [t]here was no evidence of the nature, method or condition of the system in this hotel that produced, heated and channeled water to showers in the rooms, including the plaintiff's room. There was no mention of a boiler during [any] testimony . . . [The hotel manager] knew nothing when asked if she knew whether any work had been performed upon this boiler during the renovations of the hotel or if anyone had checked the boiler." Id. at 446-47. The court concluded that " we cannot say that it rises to the quality of 'more probable than not' on the control condition of the doctrine to justify submitting the issue of res ipsa loquitur to the jury." Id. at 447.
1.
Applying the " control" element as discussed in the Malvicini case, this court would conclude that the plaintiff in the instant matter had similarly failed to prove the first element. The plaintiff offered no evidence regarding the electrical system, and whether it had been repaired or changed since the defendant took ownership of the building. Nor did the plaintiff present any evidence about whether inspections had been done on the property prior to December 2013 or between the time of the alleged injury and the time of the inspection by his expert. Nor did the plaintiff establish the duty of the defendant regarding inspections in 2013. As in the Malvicini case, where the plaintiff was unable to provide an explanation as to how the scalding water appeared in the faucet, the plaintiff in the instant matter was unable to offer an explanation as to how the wires enervated the door in December 2013.
To the extent that the plaintiff relies upon the facts presented in the trial, the plaintiff is not entitled to rely upon the doctrine because he was not able to connect the dots between the allegedly exposed wires in the ceiling in December 2015 and the electrical charge allegedly suffered by the plaintiff in December 2013. The plaintiff's expert was not able to opine, to a reasonable degree of probability, where the wires were in 2013, nor was be able to duplicate the occurrence in December 2015. Neither was the expert able to establish that the condition of the ceiling in December 2015 was the same as in December 2013; and the plaintiff presented no facts regarding this. The plaintiff elected not to examine the defendant, who might have provided some of the missing and necessary facts. Ultimately, the facts proffered were insufficient. To establish the " how" and so the plaintiff could not be relieved of his burden to prove the " why."
2.
Now, given the contemporary construction of the " control" requirement, this court cannot say, with total conviction, that the evidence failed to establish that the defendant had control and possession of the premises on the day of the incident or on the day when plaintiff's expert inspected the property. " The growing trend in res ipsa loquitur jurisprudence is not to apply the 'control' condition in such a way that renders it 'a fixed, ' mechanical and rigid rule. 'Control' . . . must be a flexible term. It may be enough that the defendant has the right or power of control, and the opportunity to exercise it . . . It is enough that the defendant is under a duty which he cannot delegate to another . . . The point of requiring control by the defendant is, as indicated by Prosser, to provide the basis for an inference that whatever negligence was involved may properly be charged to the defendant." (Internal citations omitted.) Giles v. New Haven, supra, 228 Conn. 449.
Because the application of res ipsa loquitur allows a plaintiff to dispense with direct proof of an important evidentiary issue, namely, the negligence of the defendant, it is very important that other evidence regarding the claim be fairly well-supported. This is why the court in Malvicini found that the plaintiff was not entitled to a res ipsa loquitur charge. There were too many unanswered variables, including the injury itself. Was Malvicini scalded in the shower, and if so, how ?
Our courts have not explicitly distinguished cases in which the direct cause of the injury is clear and uncontroverted from cases like the instant one, where whether or not the plaintiff was electrically shocked by the door knob remains to be proven to the factfinder. However, other courts have.
In an analogous case to the instant one, the Iowa Supreme Court held that the doctrine of res ipsa loquitur was inapplicable. The plaintiff in Tedrow v. Des Moines Housing Corp., 249 Iowa 766, 87 N.W.2d 463 (1958), sought damages from the defendant for the results of a fire which tragically killed the plaintiff's decedent. After the fire, a fuse box, badly burned, was examined and found to contain three one cent cooper coins. The plaintiff sought to rely on this fact of the pennies, along with expert testimony that coins placed in fuses make a fire hazard, in order to present to the jury the case for res ipsa loquitur . Similar to the instant case, the plaintiff also sought to rely upon specific allegations of negligence. The trial court directed a verdict for the defendant. The Iowa Supreme Court affirmed the trial court.
The Iowa Supreme Court held in its ruling.
The mere happening of a fire with the resultant injuries raises no presumption of negligence . . . The burden is of course upon the one who seeks to recover . . . to prove such negligence, and this is equally true whether he relies upon the evidentiary doctrine of res ipsa loquitur or upon specific acts. This is elementary. So the plaintiff here carried the burden of making a prima facie case . . . " Since the plaintiff's case here goes no further than to show that there were coins in the well sockets which created a fire hazard, we must determine whether he has sufficiently shown the way the injury occurred. The doctrine of res ipsa loquitur does not avail him unless he has made such a showing . . . (Emphasis added.) Id. at 769-70.
The Tedrow court explained that there had to be " sufficient evidence of the 'foundation facts' " regarding the manner in which the fire started for res ipsa loquitur to apply. Id. Without that necessary factual foundation, the issue is not properly presented to the jury. Id.
Of course, as in the instant case, adverse inferences could be drawn. The Tedrow Court stated: " We may infer that the pennies were in the well before the fire . . . But we do not know that these wires were ever overloaded; that they became heated or cast off sparks, or made a short circuit in any way. " Id. Importantly, the Tedrow court noted that " while the plaintiff has shown a condition which could possibly have caused the fire, it is only conjecture that it did so . . . In this case, if we assume there was evidence from which an inference might be drawn that circuits led from the fuse wells in which the pennies were found, we are still without anything to tell us where these circuits went, or whether they became overheated, or whether there was flammable material near them. There is no evidence of the amount of electric load required . . . The evidence to establish the manner in which the injury occurred need not be conclusive; it may be circumstantial; but it must arise above speculation." (Emphasis added.) Id. at 771-72.
Applying the reasoning of the court in Tedrow to this Pellegrino case, the court is persuaded that the plaintiff was not entitled to rely upon res ipsa loquitur to present his case to the jury. Unlike in Tedrow, where the allegedly harmful mechanism (copper pennies) were found immediately after the fire, in this case, the exposed wires were not identified until two years after the alleged incident. Therefore, construing the evidence in the light most favorable to the plaintiff, the foundation of facts he presented are the following. Two years after the incident exposed wires were identified behind a ceiling tile which electrified the metal gird holding the ceiling up. The grid, in December 2015, was in very close proximity to the metal door frame. The electricity, which seeks ground, could have arced from the grid to the doorframe, energizing the door knob in December 2015, though this did not happen while the plaintiff's expert was present.
As in Tedrow, the plaintiff in this case has done no more than identify a condition that potentially created a hazard. But, unlike in Tedrow, the plaintiff did not establish that the condition was present in December 2013.
" Res ipsa loquitur instructions are appropriate when a plaintiff cannot prove with direct evidence the proximate cause of an injury, and has shown that the only reasonable explanation for the incident is that the injury must be attributable to the defendant's negligence." Pineau v. Home Depot, Inc., supra, 45 Conn.App. 257. When one looks closely at the facts of the cases, it is clear that evidence regarding the " proximate cause" of an injury is " how " and the reason or mechanism that sets the process in motion is the " why ." See, Giles v. New Haven, supra, (no dispute that the compensation chain hooking onto the rail bracket was the cause of the incident, but why it hooked wasn't established); or Feeney v. New York Waist House, supra (no dispute that glass falling out of window was the cause of the injury; but why it fell was unestablished).
III.
In conclusion, the court denies the plaintiff's motion to open and/or set aside the judgment for the following reasons. First, the plaintiff's expert was not qualified to opine that the wires enervated the door. Second, to the extent that the expert testified that there were exposed wires in the ceiling in December 2015 that were not connected to the door frame, the probative value of this testimony, without more, was outweighed by the prejudicial affect. Third, the plaintiff elected to proceed on his specific allegations of negligence, but failed to make a prima facie case of his specifically alleged negligence claims. Fourth, the plaintiff failed to disclose his intention to rely upon the res ipsa loquitur doctrine in a timely fashion, so as to apprise both the court and opposing counsel of this. He did not comply with the Standing Civil Jury Trial Order, which would have provided the requisite notice. Sixth, even if the plaintiff had provided timely notice of his intention to use the doctrine, it is inapplicable to this case, because the plaintiff alleged and pursued specific allegations of negligence. Seventh, the doctrine of res ipsa loquitur is inapplicable to this case because the plaintiff failed to establish " how " the accident happened, and therefore needed direct evidence of negligence to go forward with his claim. The plaintiff lacked the necessary foundation or facts. Eighth, the plaintiff failed to meet all three criteria required for the application of the res ipsa loquitur doctrine.