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GAJEWSKI v. PAVELO12/22/1994
ected knowledge as a professional. The instructions were entirely consistent with the holding of Sharp v. Wyatt, supra, 849, in that Connecticut law does not allow "sellers and purchasers simultaneously . . . rely on one another to provide warnings with the result that none is issued to the ultimate product user."
II
THE CHARGE AS TO THE LIABILITY OF THE MUNICIPAL EMPLOYEES
The plaintiffs also claim that the court gave inconsistent and confusing instructions on the law pertaining to the liability of municipal employees. Specifically, the plaintiffs contend that the charge was inconsistent as to the order in which the jury was to consider the issues of negligence and municipal immunity, as to the purpose of the Building Officials and Code Administrators Basic Building Code, and as to whether the standard for determining if a city official is immune in the performance of a discretionary act involving identifiable persons is objective or subjective.
The plaintiffs claim that it was improper for the court initially to tell the jury to consider whether the employees were negligent before considering the defense of sovereign immunity, and then later to reverse the order of consideration of those issues. The gist of the plaintiffs' argument is that the order in which the jury considered those issues was crucial because, since sovereign immunity is a defense, the defendants, not the plaintiffs, had the burden of proving it. By allowing the jury first to consider whether the employees were negligent, the plaintiffs claim the trial court enlarged their burden of proof. If a trial court's instructions do enlarge a party's burden of proof, there may be reversible error. Goodmaster v. Houser, 225 Conn. 637, 645, 625 A.2d 1366 (1993); State v. Smith, 183 Conn. 17, 28, 438 A.2d 1165 (1981); McSwiggan v. Kaminsky, 35 Conn. App. 673, 647 A.2d 5, cert. denied, 231 Conn. 934, 649 A.2d 256 (1994). Here, however, the order in which the issues of negligence and municipal immunity were considered is irrelevant to our determination of whether the jury was correctly charged as
to the defendants' liability. Boiselle v. Rogoff, 126 Conn. 635, 641, 13 A.2d 753 (1940). The jury in the present case was not told by the court that the plaintiffs need prove, by a fair preponderance of the evidence, anything beyond negligence. In fact, the reversal of the order of consideration of the issues was beneficial to the plaintiffs. If the jury first considered and found negligence, a verdict for the plaintiffs was possible, and the jury might never have considered the sovereign immunity issue. On the other hand, if the jury had considered sovereign immunity first, and found it a bar to recovery, it would not have reached the negligence issue. The plaintiffs cannot claim error in a charge where the alleged error was beneficial to them. Frigon v. Enfield Savings & Loan Assn., 195 Conn. 82, 87, 485 A.2d 1305 (1985); Rapuano v. Oder, 181 Conn. 515, 520, 436 A.2d 21 (1980).
We have also determined that the purpose of the building code was not misstated. The plaintiffs agree with the court's initial charge that the purpose of the code was to ensure the safety of "occupants." Presumably, the plaintiffs agree with this portion of the charge because it instructs the jury that the city employees had a duty under the building code to inspect every boiler installation before that boiler was put into use. By not inspecting the boiler installed in the Gajewski home, that duty was breached because "the purpose of inspection was the safety of the occupants." The plaintiffs claim that the court's later charge that the purpose of the building code is t
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