Paige v. Saint Andrew's Roman Catholic Church Corp.

CALLAHAN, C. J.,

with whom MCDONALD, J., joins, dissenting. I disagree with the majority’s conclusion that the evidence presented at trial was sufficient to establish that the negligence of the defendant, St. Andrew’s Roman Catholic Church Corporation, was a proximate cause of the injuries sustained by the plaintiff, Thelonious Paige. Therefore, I respectfully dissent.

An essential element of any successful negligence action is the establishment of the defendant’s conduct as a proximate cause of the plaintiffs injury. Hearl v. Waterbury Young Men’s Christian Assn., 187 Conn. 1, 4, 444 A.2d 211 (1982); W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 41, p. 263. “The causal relation between the defendant’s wrongful conduct and the plaintiffs injuries must be established in order for the plaintiff to recover damages.” Vetre v. Keene, 181 Conn. 136, 139, 434 A.2d 327 (1980). To establish this causal connection, the plaintiff must “prove an unbroken sequence of events that tied his injuries to the [defendant’s conduct].” Boehm v. Kish, 201 Conn. 385, 392, 517 A.2d 624 (1986); see also W. Prosser & W. Keeton, supra, p. 269. In so doing, the plaintiff must base this causal connection upon more than conjecture and surmise. Vetre v. Keene, supra, 140-41.

In its response to interrogatories, the jury found that the defendant was negligent in the following ways: (1) the defendant did not deactivate boiler number one, the boiler in which the plaintiff was injured; (2) the defendant’s custodian assured the plaintiff that the boiler and burner had been deactivated, but did not *43deactivate the boiler and burner properly; and (3) the defendant failed to supervise its employees, servants and agents and failed to instruct them not to activate the burner or boiler while the plaintiff was cleaning the boiler.

With respect to the issue of causation, the jury found only that the defendant’s negligence constituted a proximate cause of the plaintiffs injuries. The jury, however, did not make a specific finding as to which of the defendant’s alleged negligent acts was a proximate cause of those injuries. At trial, however, both the plaintiff and his coworker, Osvaldo Cano, testified that, before the plaintiff entered boiler number one, Cano verified that both boilers had been deactivated properly. In light of the undisputed testimony that Cano, as part of his job responsibilities, confirmed that the switches were off before the plaintiff entered the boiler, I believe that, as a matter of law, any alleged failure of the defendant properly to deactivate boiler number one before Cano checked the switches could not constitute a proximate cause of the plaintiff’s injuries. Hearl v. Waterbury Young Men’s Christian Assn., supra, 187 Conn. 4-5; Coburn v. Lenox Homes, Inc., 186 Conn. 370, 383, 441 A.2d 620 (1982).

Consequently, the only possible basis for holding the defendant liable for the plaintiffs injuries is the jury’s finding that the defendant negligently failed to supervise and instruct its employees, servants and agents to avoid activating the boiler while it was being cleaned. Thus, the dispositive issue in this appeal is whether there is sufficient evidence in the record to support a factual finding that an unidentified employee, servant or agent of the defendant entered the church-school facility, walked down to the boiler room, entered the boiler room, walked within approximately ten feet of Cano, activated not only the circuit breaker but also the emergency switches for boiler one, and then somehow *44retraced his steps, entirely unnoticed. Vetre v. Keene, supra, 181 Conn. 139.

“In reviewing the soundness of a jury’s verdict, we construe the evidence in the light most favorable to sustaining the verdict. Oakes v. New England Dairies, Inc., [219 Conn. 1, 12, 591 A.2d 1261 (1991)]; Bartholomew v. Schweizer, 217 Conn. 671, 687, 587 A.2d 1014 (1991). If the jury could reasonably have reached its conclusion, the verdict must stand. Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 57, 578 A.2d 1054 (1990).” Donner v. Kearse, 234 Conn. 660, 681-82,662 A.2d 1269 (1995). With respect to the second part of this test, we consistently have held that “[drawing logical deductions and making reasonable inferences from facts in evidence, whether that evidence be oral or circumstantial, is a recognized and proper procedure in determining the rights and obligations of litigants, but to be logical and reasonable they must rest upon some basis of definite facts, and any conclusion reached without such evidential basis is a mere surmise or guess.” (Emphasis added.) Latham v. Hankey, 117 Conn. 5, 10-11, 166 A. 200 (1933); see also Boehm v. Kish, supra, 201 Conn. 389 (“[w]hen an element necessary to a cause of action cannot be established without conjecture, the evidence presented cannot withstand a motion for a directed verdict”); Palmieri v. Macero, 146 Conn. 705, 708, 155 A.2d 750 (1959) (“[inferences. . . must be reasonable and logical, and the [results] based upon them must not be the result of speculation and conjecture”).

The jury reasonably could have found the following facts related to whether an agent of the defendant activated the boiler switches after Cano checked to see that they had been deactivated. Boiler number one was used to supply heat to the defendant’s church-school facility. The upper level of the facility included a church and an eight classroom school. Located directly below *45the church on the lower level were a parish hall, a small kitchen and the boiler room.

At 7 a.m. on the morning of the accident, the ambient temperature was forty-two degrees. By 10 a.m., the temperature had risen to fifty-one degrees. School was not in session that day, but masses were scheduled for 7 a.m. and 12:10 p.m.

The defendant employed approximately fifteen to twenty people including eight teachers, a principal, maintenance and secretarial personnel, three parish priests and five nuns. Of these employees, only the maintenance personnel, the teachers and the principal worked directly in the church-school facility. The rest of the employees worked primarily in the defendant’s rectory and convent, separate buildings that were located up the road from the church-school facility.

Because school was not in session, there were no school children in the church-school facility that morning. Neither party introduced any direct evidence concerning whether any of the teachers or the school principal came into work that day. John E. Gilmartin, the pastor of the parish, however, testified that he was in the church-school facility at 7:25 a.m. and again at 9:30 a.m. on the day of the accident. Gilmartin testified that on both of those occasions he did not see anyone associated with the school in the church-school facility.

Between 9:30 a.m. and 11 a.m., the approximate time of the accident, only five people are known to have entered the church-school facility. Of those five, only one, the church custodian, was the defendant’s employee, servant or agent. The remaining four were the plaintiff, Cano and two painters who were independent contractors working in the church hall. Three of these men testified that they did not see anyone in the *46building that morning, other than the church custodian.1 The jury specifically determined, however, that the defendant’s custodian did not activate the boiler switches after Cano had verified that they were turned off.2 There was absolutely no other evidence that anyone other than those five persons was in the church-school facility the morning of the accident.

From the evidence previously set forth the jury was permitted to draw any and all reasonable inferences that could establish a causal connection between the defendant’s conduct and the plaintiffs injuries. Boehm v. Kish, supra, 201 Conn. 392. The jury reasonably could have inferred from the temperature records and the mass schedule that if the heat was not turned on, the church would have been cold at the time of the noon mass. At most, however, that inference supports a conclusion that, had an employee of the defendant been aware that the church was cold, the employee would have had a reason to turn on the boiler switches.

The plaintiff, however, proffered no evidence that any employee of the defendant, other than the custodian, was in the church-school facility that day, or otherwise was aware that the church was cold. Without evidence that a particular employee of the defendant either was in the church-school facility, or at least was alerted to the fact that the building was cold, the jury could have relied only upon speculation and guesswork to link the defendant to the activation of the boiler switches. Therefore, I believe that, as a matter of law, *47proving only the defendant’s possible motivation for activating the switches does not constitute sufficient evidence to support the inference that some unknown agent of the defendant actually did so. Wu v. Fairfield, 204 Conn. 435, 440-41, 528 A.2d 364 (1987); Boehm v. Kish, supra, 201 Conn. 392.3 The accident and the injuries sustained by the plaintiff were of a nature to evoke sympathy, but, despite the majority’s struggle to uphold the jury’s verdict, that verdict was based not on reasonable inferences but on pure guesswork. There is nothing in the record from which to infer the identify or affiliation of the person or persons responsible for activating the boiler switches.

Consequently, I dissent.

The other painter who was present at the time of the accident did not testify at trial.

The jury’s verdict was as follows: “Was the defendant, ST. ANDREWS ROMAN CATHOLIC CHURCH CORPORATION, or its agents, servants, or employees, negligent in any of the following ways . . .

“f) The defendant’s custodian, who assured Thelonious Paige that the boiler would remain deactivated, negligently activated the control causing the burner to ignite. Yes__ No X ”

Despite the majority’s assurance to the contrary, there is neither direct nor circumstantial evidence from which a jury reasonably could infer that an employee of the defendant activated the switch that ignited the burner. The plaintiff presented no evidence that any employee was in the building or near the boiler at the time of the accident. The evidence presented would require the jury to speculate that it must have been an employee because an employee is more likely than other persons to have turned on the boiler because of the cold. The painters, who were known to be in the building, were just as likely to have suffered from the cold and turned on the boiler. This fodder for speculation does not constitute proof by a preponderance of the evidence. Proof of causation cannot be met by arguing that one scenario is more probable than others in the absence of some evidence, direct or circumstantial, other than the probability itself, from which the jury reasonably could find a causal connection. At most, the evidence presented by the plaintiff indicates that someone threw a switch that caused the burner to ignite, not that the person throwing the switch was an employee of the church. Though it might have been a church employee, such a conclusion constitutes a mere guess, not a reasonable inference from the scant evidence presented.