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GAJEWSKI v. PAVELO12/22/1994
an error must be so fundamental and material that it may work an injustice. West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 318, 541 A.2d 858 (1988); Bell v. Bihary, supra, 273, citing Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 316, 268 A.2d 639
(1970). Contradictory instructions that force a jury to decide a material question of law in either one of two inconsistent ways are impermissible. Bell v. Bihary, supra, 273, citing Connors v. Connolly, 86 Conn. 641, 650, 86 A. 600 (1913); W. Maltbie, Connecticut Appellate Procedure §§ 76, 87, 91, 92 (2d Ed. 1957). Flatly inconsistent statements in close proximity to one another, without any attempted clarification or correction will likely cause a jury to be misled and will result in reversal. Alaimo v. Royer, 188 Conn. 36, 40, 448 A.2d 207 (1982).
A charge, however, is to be read as a whole without the dissection of its parts. It will not be the source of reversible error absent a determination that the probable effect of the charge was to lead the jury to an incorrect verdict. Norrie v. Heil Co., supra, 203 Conn. 606; Tripp v. Anderson, 1 Conn. App. 433, 435-36, 472 A.2d 804 (1984). The charge must be examined to determine whether it fairly presents a case to a jury so that no injustice results and is not to be examined "with a legal microscope, to search for technical flaws, inexact, inadvertent or contradictory statements." (Internal quotation marks omitted.) Tripp v. Anderson, supra, 436, citing Ubysz v. DiPietro, 185 Conn. 47, 57, 440 A.2d 830 (1981). Bearing these axioms in mind, we will now consider the plaintiffs' claims.
The plaintiffs argue that the trial court first gave the plaintiffs' requests to charge and then gave the defendants' requests to charge. They argue throughout their brief that their requests to charge were correct on the law, but that the defendants' requests to charge were incorrect statements of the law, and that this inconsistency must have misled the jury.
I
THE CHARGE AS TO PRODUCT LIABILITY
We first address the plaintiffs' contention that the charge was inaccurate and confusing as to the product
liability claim. The plaintiffs argue that the trial court's instructions concerning the manufacturer's duty to warn under General Statutes § 52-572q were contradictory in that the jury was first instructed to use the statutory standard for a breach of the duty to warn in order to be liable in a product liability case, and was then instructed on a common law "reasonableness" standard of a duty to warn. According to the plaintiffs, the trial court initially properly instructed the jury that it must determine whether warnings were required, and, if they were required, whether they were adequate, by considering the likelihood of the harm the plaintiffs suffered, the defendant Utica's ability to anticipate and appreciate the risk of such harm, and, finally, the technological feasibility and cost of warnings and instructions. This was the plaintiffs' requested charge, which according to the plaintiffs provides the jury with the correct strict liability standard under § 52-572q.
The plaintiffs take issue with the court's later set of instructions in which the court told the jury to consider
whether the "furnace was unreasonably dangerous" and that manufacturers are required under Connecticut law to "take reasonable steps to make the product reasonably safe under reasonable circumstances." (Emphasis added.) The plaintiffs argue that this later instruction allowed the jury to apply common law standards of liability and negligence, in contravention of Connecticut's strict statutory product liability
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