Garcia v. Cohen

USSBASY GARCIA v. ROBERT COHEN ET AL.

AC 41079

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Submitted on briefs October 5, 2020

April 20, 2021

Lavine, Prescott and Bishop, Js.^*

Syllabus

The plaintiff tenant sought to recover damages from the defendant landlords, R and D, for personal injuries that she suffered when she slipped on the rear exterior staircase of her apartment building. The plaintiff claimed that the defendants were negligent in failing to keep the steps of the staircase free from dirt and sand and by allowing the surface of the steps to become pitted, worn and uneven. At trial, R testified that other individuals helped him with snow removal at the property and that, together, they would remove snow and spread salt and sand on the staircase but that no one would return thereafter to clear the staircase after spreading salt and sand. After a jury trial, judgment was rendered in favor of the defendants. The plaintiff appealed to this court, claiming that the trial court improperly rejected her request to charge and failed to instruct the jury that the possessor of real property has a nondelegable duty to maintain the premises in a reasonably safe condition. This court affirmed the trial court's judgment, concluding that the general verdict rule precluded the plaintiff's claim on appeal. The plaintiff, on the granting of certification, appealed to our Supreme Court, which reversed this court's judgment and concluded that the general verdict rule did not preclude the plaintiff's claim on appeal, and remanded the case to this court with direction to consider the plaintiff's claim of instructional error. Held:

1. The trial court erred by failing to instruct the jury on the nondelegable duty doctrine; R's testimony that he employed contractors to remove snow and otherwise maintain the staircase implicated the nondelegable duty doctrine because that testimony implicitly raised the issue of whether he or the individuals who helped him remove snow was responsible for the condition of the staircase, and the plaintiff's proposed jury charge was relevant to the issues in the case, an accurate statement of the law and reasonably supported by the evidence adduced at trial.

2. The trial court's instructions to the jury and its refusal to instruct the jury on the defendants' nondelegable duty to maintain the premises constituted harmful error; the jury could have concluded that the snow removal team acted negligently, but the court did not instruct the jury that such a finding would have resulted in an allocation of liability to the defendants under the nondelegable duty doctrine; accordingly, this court concluded that there was a consequent likelihood of actual harm to the plaintiff significant to warrant a new trial.

Procedural History

Action to recover damages for, inter alia, the defendants' alleged negligence, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the action was withdrawn in part; thereafter, the matter was tried to the jury before Dubay, J.; verdict for the defendants; subsequently, the court denied the plaintiff's motions to set aside the verdict and for a new trial, and rendered judgment in accordance with the verdict, from which the plaintiff appealed to this court, Lavine, Prescott and Bishop, Js., which affirmed the trial court's judgment; thereafter, the plaintiff, on the granting of certification, appealed to the Supreme Court, which reversed this court's judgment and remanded the case to this court for further proceedings. Reversed; new trial. John Serrano submitted a brief for the appellant (plaintiff).

Allison Reilly-Bombara submitted a brief for the appellees (defendants).

Opinion

BISHOP, J. This appeal returns to us on remand from our Supreme Court. At trial in this negligence action, a jury returned a verdict finding the defendants, Robert Cohen and Diane Cohen, not liable as landlords for injuries the plaintiff, Ussbasy Garcia, suffered when she slipped and fell on the staircase outside her apartment building on the defendants' premises. On appeal, the plaintiff claimed that the court erred by rejecting her request to charge and failing to instruct the jury that the owner of real property has a nondelegable duty to maintain the premises. We affirmed the judgment of the trial court on March 12, 2019, holding that the plaintiff's claims were not reviewable on the basis of the general verdict rule. See Garcia v. Cohen, 188 Conn. App. 380, 386-87, 204 A.3d 1245 (2019), rev'd, 335 Conn. 3, 225 A.3d 653 (2020). On certification, our Supreme Court reversed our holding with regard to the general verdict rule and remanded the case to this court with direction to consider the plaintiff's claim of instructional error. See Garcia v. Cohen, 335 Conn. 3, 28, 225 A.3d 653 (2020). On review of the merits, we agree with the plaintiff that the trial court should have issued a jury instruction on the defendants' nondelegable duty to maintain the premises, and, accordingly, we reverse the judgment of the trial court.

The following facts and procedural history are set forth in our Supreme Court's opinion. "In the middle of winter, the plaintiff exited her second floor rental apartment shortly before noon carrying a basket of laundry. She went out the rear exit and descended the exterior staircase. Before reaching the bottom of the staircase, she slipped and fell, fracturing her left ankle and tearing her left ankle deltoid ligament. She testified that she slipped because the fourth step had a lot of sand on the surface and was not safe. The plaintiff brought a premises liability action, alleging that her landlords, the defendants, negligently and carelessly (1) failed to maintain the steps clean, clear, and free of dirt and sand, (2) allowed the surface of the steps to become pitted, worn, and uneven, and (3) failed to post a notice or otherwise warn of the slippery condition of the steps. The defendants denied the allegations in the complaint and asserted a special defense alleging that the plaintiff's injuries resulted from 'her own negligence and carelessness . . . .'

"A jury trial ensued in which Robert Cohen testified about how he maintained the property during the winter months. He testified that three or four individuals helped him with snow removal at the property. Together, they would remove snow after a snowstorm and spread salt and sand on the stairs. Robert Cohen also testified that, after spreading salt and sand on the stairs, no one would return in the winter to clear off the stairs.

"In light of that testimony, the plaintiff submitted a proposed jury instruction regarding the defendants' nondelegable duty to maintain the safety of the premises. The plaintiff also proposed that the trial court submit three interrogatories to the jury. The proposed interrogatories addressed three grounds on which the jury could have determined liability: (1) Were the plaintiff's fall and injuries caused by the defendants' negligence and carelessness in failing to maintain the steps clean, clear and free of dirt and sand? (2) Were the plaintiff's fall and injuries caused by the defendants' negligence in allowing the steps to become pitted, worn and uneven? And (3) were the plaintiff's fall and injuries caused by her own failure to exercise care under the circumstances and conditions then existing?

"The trial consisted of two days of evidence. The trial court began the second, and last, day of trial by asking if the attorneys had any preliminary matters to discuss. Because the court would instruct the jury and submit the case to it for deliberation after the conclusion of evidence later that day, the plaintiff's attorney responded: 'Just the fact that I had filed jury instructions—proposed jury instructions and jury interrogatories, and my understanding is, the court is going to disallow those.' The court replied by confirming the plaintiff's understanding and explaining: 'I don't think the interrogatories are necessary, and I don't think that the nondelegable duty charge is necessary because I'm specifically charging the jury—or I intend to specifically . . . charge the jury on the duties that are owed to an invitee.' The plaintiff's attorney answered: 'Very well. Thank [you].'

"As it indicated it would, the trial court, after the close of evidence, charged the jury on the applicable law. That charge included an explanation of the duty owed to an invitee but not an explanation of the nondelegable duty doctrine.¹ Following the instructions, the trial court asked the attorneys if there were any exceptions to the charge. The plaintiff's counsel answered: 'Other than what I had filed previously, no, Your Honor.' The jury proceeded to deliberate. During deliberations, the jury submitted the following question to the court: 'How do we indicate on the [verdict] form that we find neither party negligent?' The court instructed the jury that if it had found neither party negligent, it would have to return a defendants' verdict. The jury then returned a defendants' verdict." (Footnote added; footnotes omitted.) Id., 6-9.

After trial, the plaintiff filed motions to set aside the verdict and for a new trial. The trial court denied both motions. The plaintiff then appealed to this court, claiming that the trial court improperly had rejected her request to charge and improperly failed to instruct thejury on the defendants' nondelegable duty to maintain the premises. Garcia v. Cohen, supra, 188 Conn. App. 381-82. At oral argument, this court asked the parties whether the general verdict rule would apply to bar consideration of the plaintiff's instructional claim, and we later permitted the parties to submit supplemental briefs on that issue. Subsequently, this court concluded that the general verdict rule applied and held on that basis that the plaintiff's claims of instructional error were unreviewable. Id., 386-87.

The plaintiff filed a petition for certification to appeal from...