Garcia v. Cohen

335 Conn. 3

225 A.3d 653

Ussbasy GARCIA

v.Robert COHEN et al.

SC 20285

Supreme Court of Connecticut.

Argued November 20, 2019

Officially released March 17, 2020

John Serrano, for the appellant (plaintiff).

Keith S. McCabe, for the appellees (defendants).

Palmer, McDonald, D’Auria, Mullins and Ecker, Js.

D’AURIA, J.

In this negligence action, a jury returned a verdict finding the defendants, Robert Cohen and Diane Cohen,¹ not liable as landlords for injuries the plaintiff, Ussbasy Garcia, suffered when she slipped and fell on the staircase outside of her apartment building. The plaintiff appealed to the Appellate Court, claiming that the trial court improperly rejected her request to charge and to instruct the jury that, the defendants, as the possessors of real property, had a nondelegable duty to maintain the premises. Garcia v. Cohen , 188 Conn. App. 380, 381–82, 204 A.3d 1245 (2019). The Appellate Court declined to review the plaintiff’s claim, concluding that the general verdict rule applied because the plaintiff had failed to object when the trial court denied her request to submit her proposed interrogatories to the jury. Id., at 386, 204 A.3d 1245. Additionally, the Appellate Court concluded that the plaintiff should have made, but failed to do so, an independent claim of error on appeal on the basis of the trial court’s denial of her

request to submit her proposed interrogatories to the jury. Id., at 386–87, 204 A.3d 1245.

We disagree with the Appellate Court’s conclusion that the general verdict rule bars appellate review of the plaintiff’s jury instruction claim. The general verdict rule does not apply in the present case because the plaintiff had requested that the trial court submit her properly framed interrogatories to the jury and had objected when it denied her request. She properly framed her interrogatories by submitting questions addressing her claim of negligence and the defendants’ denial of negligence and special defense of contributory negligence. The claims of negligence and contributory negligence are so intertwined with the plaintiff’s nondelegable duty jury charge claim on appeal that the general verdict rule does not bar review. Additionally, the plaintiff was not required on appeal to assert an independent claim of error on the basis of the trial court’s rejection of her request to submit the interrogatories to the jury. Rather, the plaintiff’s submission of interrogatories and her objection upon the court’s refusal to submit them to the jury is a defense to application of the general verdict rule, not an independent claim of error. For these reasons, we reverse the judgment of the Appellate Court and remand the case to that court to undertake a review of the trial court’s denial of the plaintiff’s request for a jury instruction on the nondelegable duty doctrine.

The following undisputed facts and procedural history, as contained in the record and the Appellate Court’s opinion, are relevant to this appeal. 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.² 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.³ 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]."⁴

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. 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.⁵

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 the Appellate Court, claiming that the trial court had improperly rejected her request to charge and improperly failed to instruct the jury on the defendants’ nondelegable duty to maintain the premises. Garcia v. Cohen , supra, 188 Conn. App. at 381, 204 A.3d 1245. During oral argument, the Appellate Court asked the parties whether the general verdict rule applied and later permitted the parties to submit supplemental briefs on the issue. Id., at 384, 204 A.3d 1245. Having raised the issue sua sponte, the Appellate Court concluded that the general verdict rule indeed applied, reasoning that, although the plaintiff had requested that the trial court submit her proposed interrogatories to the jury, she failed to object when the trial court denied the request. Id., at 386, 204 A.3d 1245. Additionally, the Appellate Court concluded that the plaintiff had not specifically claimed on appeal that the trial court improperly failed to submit her interrogatories to the jury. Id., at 386–87, 204 A.3d 1245. Accordingly, the Appellate Court deemed the instructional error not reviewable. Id., at 387, 204 A.3d 1245.

The plaintiff then petitioned this court for certification to appeal, which we granted on two issues: (1) whether the Appellate Court properly held that the general verdict rule applies when a plaintiff’s proposed jury interrogatories are rejected by the trial court and the plaintiff thereafter does not object when the case is submitted to the jury without jury interrogatories; and (2) whether the Appellate Court correctly concluded that the plaintiff did not claim on appeal that the trial court improperly failed to submit her interrogatories to the jury. Garcia v. Cohen , 331 Conn. 921, 205 A.3d 567 (2019).

I

The plaintiff claims that the general verdict rule should not apply because she submitted properly framed interrogatories to the court and that, even though her counsel did not use the talismanic words, "I object," she plainly conveyed her objection to the court’s denial of her request on the record, which the court understood. She also claims that, as a predicate to review of her instructional claim, she was not required to assert an independent claim of error on the basis of the trial court’s refusal to submit her proposed interrogatories to the jury. Her reliance on the trial court’s denial of properly framed interrogatories, she argues, amounts to a defense against application of the general verdict rule. We agree with the plaintiff.

The plaintiff’s challenges to both of the Appellate Court’s conclusions—that the general verdict rule applies and that a failure to raise an independent claim of error on the basis of a refusal to submit jury interrogatories precludes review of the plaintiff’s jury charge claim—present questions of law over which our review is plenary. MacDermid, Inc . v. Leonetti , 328 Conn. 726, 738–39, 183 A.3d 611 (2018).

"Under the general verdict rule, if a...