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

PALMER, J.,

concurring. Upon reconsideration, I am persuaded that the evidence does not support the jury’s verdict and, therefore, I join the new majority opinion. I write separately to explain briefly why, despite my original vote to affirm the judgment of the trial court, I now vote to reverse that judgment.

In dissent, Justice Berdon outlines two mutually exclusive scenarios, either one of which, he contends, would support an affirmance of the judgment rendered by the trial court in accordance with the jury verdict. Each scenario is built upon one of the two jury findings of negligence, namely that: (1) the defendant and the defendant’s custodian were negligent in failing to deactivate the boiler; and (2) the defendant was negligent in failing to supervise and instruct properly its employees to avoid activating the boiler while it was being cleaned. The evidence adduced at trial, however, does not provide a sufficient basis for the jury reasonably to have found that the defendant’s negligence was the legal cause of the plaintiff’s injuries. In other words, as the majority concludes, the failure on the part of the plaintiff “to prove an unbroken sequence of events that tie[s] his injuries to the [defendant’s conduct]”; Boehm v. Kish, 201 Conn. 385, 392, 517 A.2d 624 (1986); requires us to set aside the jury verdict.

With respect to the dissent’s first scenario,1 which is predicated on the jury finding that the defendant was *36negligent in failing to deactivate the boiler, the dissent concludes that the jury reasonably could have inferred that the boiler was still on when the plaintiff began his work on the boiler. Consequently, the dissent maintains that the jury reasonably could have found that the defendant was responsible for activating the boiler, whether it was activated by an employee of the defendant or someone else. This argument fails because the uncontroverted testimony of the plaintiff and Osvaldo Cano, the plaintiffs coworker, established that, before the plaintiff started working on the boiler, both the plaintiff and Cano made sure that all switches for each of the two boilers,2 including the circuit breakers, were in the “off’ position.3 Although there is evidence indicating that the switches to the second boiler — the boiler that the plaintiff did not work on — had been turned on sometime before the plaintiff and Cano arrived,4 there simply is no evidence to support the inference that any of the switches to the boiler that the plaintiff did work on were in the “on” position when the plaintiff began his work inside that boiler.5 6Consequently, under the dissent’s first scenario, the jury would have been required *37to speculate as to when and how the boiler was activated.6

The dissent’s second scenario is based upon the factual premise relied upon by the original majority opinion. See generally Paige v. St. Andrew’s Roman Catholic Church Corp., 247 Conn. 24, 31-36, 718 A.2d 425 (1998). Under this scenario, which is predicated on the jury finding that the defendant negligently had failed to instruct its employees to avoid activating the boiler while it was being cleaned, an employee of the defendant activated the boiler while the plaintiff was working on it. After a careful review of the trial record, however, I am persuaded that the new majority is correct in concluding that the evidence is insufficient to support a finding that it is more likely than not that an employee of the defendant activated the boiler while the plaintiff was cleaning it.

My conclusion is based on the following evidence and lack thereof. First, with the exception of Juan Hernandez, the maintenance supervisor, John E. Gilmartin, the pastor of the church, and the priest who celebrated the 12:10 mass (noon mass), there is no evidence that any of the defendant’s other employees were in the church at the time of the accident.7 Consequently, there is no evidence from which it could be inferred that any one of those other employees entered the boiler room *38and activated the boiler while the plaintiff was inside. Of course, the jury reasonably could have inferred that additional heat was necessary to warm up the church for the noon mass, and, furthermore, that Hernandez, Gilmartin and the priest who conducted the noon mass would have known about the mass and the temperature inside the church. There is nothing in the record, however, to support an inference that any of the defendant’s other employees were involved in preparing for the noon mass, or that any of them had any other reason to activate the boiler. Moreover, with respect to some of these employees, there is no evidence from which it could be inferred that they even knew where the boiler was located or how to operate it.8 Absent speculation, it would be impossible to conclude that any one of these other employees activated the boiler.9

Hernandez, Gilmartin and the priest who celebrated the noon mass were in the church on the morning of the accident. The jury expressly found, however, that Hernandez did not activate the boiler. Furthermore, the plaintiff makes no claim that Gilmartin turned on the boiler; indeed, Gilmartin’s uncontroverted testimony established that he was not in the church at the time of the accident, and the plaintiff adduced no contrary evidence.

*39As for the priest who celebrated the noon mass, the jury reasonably could have inferred that, when he arrived at the church, he found it to be uncomfortably cool. The accident occurred at 11 a.m., however, and there was no testimony placing the priest in the church prior to the noon mass. Consequently, in order to conclude that the priest activated the boiler, it also must be inferred that the priest arrived at the church more than an hour early to prepare for the mass. Assuming that this latter inference is a fair one, there is no evidence tending to establish that the priest knew how to activate the boiler, or even that he knew where the boiler room was located. Absent any evidence linking the priest to the boiler, the jury reasonably could not have concluded that the priest activated it. In other words, the jury could not have found that it was more likely than not that the priest activated the boiler based solely on the subordinate finding that he knew that the church was uncomfortably cool.10

Writing for the original majority, Justice Berdon sought to make the necessary connection between the priest and the boiler, as follows: “Clearly, the three priests who worked for the defendant at the time of the accident — each of whom possessed keys to the boiler room — knew where to find the boiler and how to activate it." (Emphasis added.) Paige v. St. Andrew’s Roman Catholic Church Corp., supra, 247 Conn. 32 n.10. If this critical factual assertion were accurate, as I mistakenly believed it to be, it would have permitted the inference that the priest who celebrated the noon mass had knowledge of where the boiler was located and how to operate it — an inference that would have provided the link necessary to connect the priest to the boiler room and remove that aspect of the plaintiffs *40case from the realm of speculation. Under such a factual scenario, therefore, the original majority reasonably could have concluded that the evidence, although close; see id., 31 (acknowledging that “this is a close case”); was sufficient to support a finding that it was more likely than not that the priest had activated the boiler. As the defendant pointed out in its motion for reconsideration en banc, and as a careful reexamination of the entire record bears out, however, there is no evidence, whatsoever, establishing that the priest who performed the noon mass possessed a key to the boiler room. On the contrary, the evidence adduced at trial indicated that only Gilmartin and Hernandez possessed keys to the boiler room.11 Absent any testimony from which it could be inferred that the priest who celebrated the noon mass knew how to activate the boiler, or even that he knew where the boiler was located, the jury reasonably could not have concluded that it was more likely than not that he had activated the boiler while the plaintiff was working on it.12

One can take no pleasure in denying a seriously injured plaintiff compensation for his injuries. Nevertheless, because our system of justice requires that we strive to apply our laws in an objective, impartial and evenhanded manner, where, as here, the facts, viewed most favorably to sustaining the jury verdict, do not support that verdict, we are duty bound to do so. Accordingly, upon reconsideration of my original vote, I concur with and join the new majority opinion.13

I note, preliminarily, that the first scenario described by the dissent was not raised by the plaintiff until oral argument on the courl’s reconsideration of the case en banc. Because we ultimately must decide whether the facts adduced at trial, when viewed in the light most favorable to the plaintiff, support the jury’s verdict, we are free to consider this, or any other, factual scenario, no matter what stage of the proceedings it is raised. Nevertheless, the fact that the plaintiff failed to advance this scenario prior to the second oral argument in this case suggests that the plaintiff, himself, did not regard it as particularly persuasive.

There were two boilers. The plaintiff, however, only worked on one of them. He did not enter the second boiler.

Of course, “[a] trier of fact is free to reject testimony even if it is uncontradicted . . . and is equally free to reject part of the testimony of a witness even if other parts have been found credible.” (Citations omitted.) Barilla v. Blake, 190 Conn. 631, 639, 461 A.2d 1375 (1983). It is axiomatic, however, that, in rejecting such testimony, a fact finder is not free to conclude that the opposite is true. E.g., State v. Hart, 221 Conn. 595, 605, 605 A.2d 1366 (1992); Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979). Thus, although the jury could have disbelieved the testimony of the plaintiff and Cano, in whole or in part, the jury could not have concluded from that testimony that the switches to the boiler in which the plaintiff was working were in the “on” position when the plaintiff and Cano started their work.

The plaintiff and Cano noticed that the second boiler appeared to have been on at some point because it was hot.

Of course, the mere fact that the boiler ignited sometime after the plaintiff entered it proves nothing about the positioning of the switches when the plaintiff and Cano entered the boiler room.

It hardly is surprising that there was no evidence to suggest that the switches were in the “on” position when the plaintiff entered the boiler, for it is virtually inconceivable that both Cano and the plaintiff, who were described by their employer, the vice president of Turnpike Furnace, as “ ‘[v]ery good’ workers [who were] aware of the company’s policy requiring employees to ensure that all switches are off before they begin work on a boiler”; (internal quotation marks omitted) Paige v. St. Andrews Roman Catholic Church Corp., 247 Conn. 24, 27-28 n.4, 718 A.2d 425 (1998); would have begun their work without first turning off the boiler.

In addition to Hernandez, the defendant employed three priests, including Gilmartin, three nuns, two janitorial assistants, a housekeeper, a cook and two secretaries.

For example, although it would be reasonable to infer that the two janitorial assistants had some familiarity with the boiler room, there is no reason to draw such an inference with respect to the two priests other than Gilmartin, the three nuns, the housekeeper, the cook and the two secretaries. With regard to the janitorial assistants, Hernandez testified, without contradiction, that they were with him at lunch, when the accident occurred. Moreover, there was no evidence placing the janitorial assistants at the scene when the accident occurred.

In view of the paucity of evidence relating to the activation of the boiler, it also would require speculation to conclude that someone other than an employee of the defendant, such as a parishioner or officious intermeddler, had ignited the boiler. This fact does not aid the plaintiff, however, for he, not the defendant, bore the burden of removing his claim from the realm of speculation.

Undoubtedly, it is for this reason that the plaintiff never asserted that the priest who celebrated the noon mass was responsible for activating the boiler.

Specifically, Hernandez testified that only he and Gilmartin had keys to the boiler room. Gilmartin testified that he did not know whether anyone else had a key.

This factual lacuna aside, it is difficult to imagine that the priest who celebrated the noon mass walked into the lighted boiler room at approximately 11 a.m., saw Cano standing near the boiler, proceeded to activate the boiler, and then failed to respond when, seconds later, the boiler ignited, causing the emergency situation that resulted in the grievous injuries to the plaintiff.

As is frequently his practice, Justice Berdon characterizes the opinions of those with whom he disagrees in disparaging and provocative terms. I, *41like the other members of the majority, refuse to engage Justice. Berdon in kind.