Preview:

****************************************************** The ``officially released'' date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ``officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ``officially released'' date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** THOMAS MONTEROSE v. PAUL CROSS (AC 19185)
Foti, Schaller and Mihalakos, Js. Argued February 17--officially released November 14, 2000 Counsel

George E. Mendillo, for the appellant (plaintiff). Robert M. Brennan, for the appellee (defendant).
Opinion

MIHALAKOS, J. The plaintiff, Thomas Monterose, appeals from the judgment rendered, following a jury trial, in favor of the defendant, Paul Cross, in this action sounding in negligence. On appeal, the plaintiff claims that the trial court improperly (1) refused to charge the jury on the standard of care applicable to the defendant in his work as a rigger, (2) failed to charge the jury regarding the testimony of expert witnesses as to the standard of care applicable to riggers and (3) charged the jury as to comparative negligence. We reverse the judgment of the trial court. The jury reasonably could have found the following facts. The plaintiff went to the defendant's house to

borrow a large wooden spool approximately four feet in width and weighing about 400 pounds. The defendant was experienced as a rigger and in moving heavy objects.1 Together, the plaintiff and the defendant loaded the spool onto the plaintiff's truck. While the plaintiff and the defendant attempted to secure the spool, the spool slipped, fell out of the truck and landed on the plaintiff's leg. The defendant testified at trial that he never should have attempted to flip the spool over on its side and that by doing so, there was a substantial risk of injury to the plaintiff. The plaintiff claims first that the court improperly failed to instruct the jury in accordance with his request to charge on the standard of care required of one who is a rigger and possesses a skill above that of an ordinary prudent person. The court refused to so charge on the grounds that the defendant was not an expert and that there was insufficient evidence to charge on the requested standard of care. The plaintiff had alleged in his second amended complaint that the defendant was a rigger trained and experienced in equipment customarily used by riggers in moving things and, further, that the defendant failed to use the care and skill ordinarily used by riggers. The defendant admitted in his answer that he had experience as a rigger, but also stated that he was employed not as a rigger but as a welder. At trial, there was testimony by the defendant that he had substantial experience in rigging and that he had been involved in moving all of his life. When asked to describe his qualifications as a rigger, the defendant testified that he had the ability to move equipment safely and to place it where people would not be injured. There also was testimony from two expert witnesses, one of whom was Raymond Bedard. He testified that he had been employed as a rigger for thirty-eight years. In a hypothetical question posed to Bedard involving the facts previously discussed, he was asked, on the basis of his knowledge and experience as a rigger, if there had been a departure from the standard of care that would apply to a rigger, to which he responded in the affirmative.2 No objection to the hypothetical question was made, nor was an objection made to Bedard's opinion as to the standard of care. This case involved a claim of alleged negligence committed by a person who allegedly had a particular skill and training. The loading and setting of the spool required expertise that is beyond the ordinary knowledge and experience of the jurors. Therefore, to prove professional negligence, expert testimony is required. Here, expert testimony was offered. ``When a topic requiring special experience of an expert forms a main issue in the case, the evidence on that issue must contain expert testimony or it will not

suffice.'' (Internal quotation marks omitted.) Sickmund v. Connecticut Co., 122 Conn. 375, 379, 189 A. 876 (1937). For example, in a case involving alleged negligence by an engineer in connection with repairs to a refrigeration plant, our Supreme Court found that it was incumbent on the plaintiff to produce evidence from an expert. ``The plaintiff held itself out to be a skilled engineer. . . . The jury should have been instructed that the plaintiff was bound to exercise that degree of care which a skilled engineer of ordinary prudence engaged in the same line of business would have exercised in the same or similar circumstances.'' Goodrich Oil Burner Mfg. Co. v. Cooke, 126 Conn. 551, 553, 12 A.2d 833 (1940). The conclusion of negligence is ordinarily one of mixed law and fact invoking the applicable standard of care, which is a question of law and its application to the facts of the case, which is a question of fact. The ultimate test of the existence of a duty to use care, the nonperformance of which constitutes negligence, is to be found in the reasonable foreseeability of harm resulting from a failure to use that care. The defendant argues that the court was correct in charging that the standard of care was that of a reasonably prudent person. The plaintiff rejects that argument and claims that the court should have charged that the proper standard of care was that which a rigger would employ under the same circumstances. See Smith v. Leuthner, 156 Conn. 422, 424

Download Monterose v. Cross (dissent below).pdf

Connecticut Law