Klein v. Quinnipiac University ( 2019 )

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DANIEL KLEIN v. QUINNIPIAC UNIVERSITY
(AC 41964)
Lavine, Keller and Bishop, Js.
Syllabus
The plaintiff sought to recover damages from the defendant private univer-
sity for negligence in connection with personal injuries he sustained
when, while riding his bicycle on the defendant’s campus, he hit a speed
bump and was thrown over the bicycle’s handlebars. The plaintiff alleged
that the speed bump was a dangerous, defective and unsafe condition
on the defendant’s property and that his injuries resulted from the
defendant’s negligence. The defendant denied any negligence and raised
as a special defense that the plaintiff was contributorily negligent. Fol-
lowing a trial, the jury returned a general verdict in favor of the defen-
dant, but no interrogatories were submitted to it. The trial court rendered
judgment in accordance with the verdict, and the plaintiff appealed to
this court. Held:
1. The plaintiff could not prevail on his claim that the trial court erred by
declining to instruct the jury on the definition of, and the duty owed
to, a licensee: the evidence in the record did not reasonably support a
conclusion that the plaintiff was a licensee, as there was no evidence
that the defendant explicitly or implicitly expressed a desire that the
plaintiff enter its campus or a willingness that he do so, and, contrary
to the plaintiff’s contention that the defendant impliedly gave him con-
sent to ride his bicycle on the campus because there was a lack of ‘‘no
trespassing’’ signs and no gate or the like at each entrance to the campus,
the lack of such signs or a gate at each entrance, without some additional
evidence demonstrating implied consent, was insufficient to send the
question of whether the plaintiff was a licensee to the jury, and if this
court were to adopted the plaintiff’s reasoning and permit liability to
be imposed in situations such as these, it essentially would require
many private properties in the state that are now used for recreational
purposes, to be fenced, gated and covered with ‘‘no trespassing’’ signs
to bar access by the public, which would have significant societal impact
and concomitant cost; moreover, even if this court were to assume that
the plaintiff was a licensee, the evidence did not support a finding that
the defendant breached any duty to the plaintiff as a licensee because,
under the circumstances in this case, the defendant was not required
to warn the plaintiff of the obvious dangers of his actions, namely, riding
his bicycle over a speed bump as he proceeded down a hill with no
intention of obeying the stop sign that lay just beyond the speed bump.
2. The general verdict rule precluded review of the plaintiff’s claim that the
trial court improperly permitted a certain witness to testify concerning
the estimated speed of the plaintiff’s bicycle at the time of the accident;
because the general verdict rule applied, this court was required to
presume that the jury found every issue in favor of the defendant,
including that the defendant was not negligent, and, therefore, that rule
precluded review of the plaintiff’s remaining evidentiary claim, which
related only to the defendant’s special defense of contributory neg-
ligence.
(One judge dissenting)
Argued May 16—officially released October 8, 2019
Procedural History
Action to recover damages for the defendant’s alleged
negligence, and for other relief, brought to the Superior
Court in the judicial district of New Haven, and tried
to the jury before, Wahla, J.; verdict and judgment for
the defendant, from which the plaintiff appealed to this
court. Affirmed.
Steven D. Jacobs, with whom, on the brief, was Rich-
ard L. Jacobs, for the appellant (plaintiff).
James E. Wildes, for the appellee (defendant).
Opinion
LAVINE, J. In this premises liability action, the plain-
tiff, Daniel Klein, appeals from the judgment of the
trial court, rendered after a jury trial, in favor of the
defendant, Quinnipiac University. On appeal, the plain-
tiff claims that the trial court erred by (1) permitting
a witness to testify about the estimated speed of the
plaintiff’s bicycle at the time of his collision, and (2)
refusing to give a jury instruction on the definition of,
and the duty owed to, a licensee. For the reasons dis-
cussed herein, we affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. The weather was clear and sunny on July 30,
2014, and the plaintiff, who was then seventy-one years
old, and his friend, Richard Lebov, decided to take a
bike ride through the defendant’s campus because the
‘‘hill’’ offered a ‘‘difficult climb’’ that was ‘‘fun’’ and ‘‘a
challenge.’’ The two had ridden their bicycles there the
year before. They were not students at the defendant,
employed at the defendant, invited onto the campus,
or planning to meet anyone on the campus.1 The campus
was not gated, and there were no ‘‘no trespassing’’ signs.
Upon entering the campus, there were alternative
routes available, one of which would pass by a guard-
house where a public safety officer was stationed at all
times.2 There was a sign posted on the guardhouse
directing vehicles to check in.3
The plaintiff and Lebov took the road to the right
that avoided the guardhouse and rode to the top of the
hill.4 They rode down the hill on a road that passes near
the guardhouse. At the end of the road, there were two
bright yellow speed bumps and a stop sign. There was
nothing that obstructed the plaintiff’s, or Lebov’s, view
of the speed bumps and the stop sign—especially as it
was a clear and sunny day. Both of them saw the bright
yellow speed bumps clearly.5
At trial, the plaintiff and Lebov each testified that
they had no intention of stopping at the stop sign.6 They
both rode over the first speed bump without incident.
When the plaintiff’s bicycle made contact with the sec-
ond speed bump, he flew over the top of his handlebars,
hit the ground, and sustained serious injuries. The offi-
cer stationed at the guardhouse, Juan Melendez, called
dispatch, and the plaintiff received medical assistance.
Officer Melendez had seen the plaintiff and Lebov
ride up the hill and had left the guardhouse to survey
the area because he thought that they were still in the
general area.7 He turned when he heard a noise and
saw the tire of the plaintiff’s bicycle hit the second
speed bump and the plaintiff thrown over the handle-
bars. Officer Melendez was permitted, over objection,
to testify that the plaintiff’s speed was ‘‘conservatively
ten miles an hour’’ or faster because of the hill’s incline.
etary damages, claiming that the speed bump was dan-
gerous, defective, and unsafe and that his injuries
resulted from the defendant’s negligence. The defen-
dant denied any negligence and raised the special
defense that the plaintiff was contributorily negligent.
The case was tried to a jury, but no interrogatories were
submitted to it. Following the trial, the jury returned a
general verdict in favor of the defendant, and the court
rendered judgment accordingly. This appeal followed.
The plaintiff first challenges the court’s evidentiary
ruling permitting Officer Melendez to estimate the
speed of the plaintiff’s bicycle. Second, he claims that
the court improperly refused to instruct the jury that
his status could have been that of a licensee and erred
by charging the jury only on his status as a trespasser.8
The defendant, however, argues that the general verdict
rule applies to this case and precludes a review of the
plaintiff’s contentions on appeal. The plaintiff argues
that although the general verdict rule might insulate
the verdict from attack in other circumstances, it does
not do so in the present case because the improper
jury charge affected both the negligence claim and the
contributory negligence special defense. We view the
plaintiff’s second claim of error with respect to the jury
charge to be without merit, and we conclude that the
general verdict rule applies to defeat the plaintiff’s first
claim. We address the plaintiff’s second claim first.
The essential issue in this case is whether the plaintiff,
an experienced bicyclist, who was injured while riding
his bicycle on the York Hill campus of the defendant,
a private university, was entitled to have the jury
instructed on the definition of, and the duty owed to,
a licensee. The trial court decided that the issue was
one of law, that the evidence did not support the claim
that the plaintiff was a licensee, and that he was not
entitled to such a jury charge. On appeal, the plaintiff
claims that it was reversible error for the court to take
the issue away from the jury, which returned a verdict
in favor of the defendant, because, in his view, there
was evidence that the defendant implicitly consented
to his presence.
Connecticut’s premises liability law has long pro-
vided that ‘‘[t]he status of an entrant on another’s land,
be it trespasser, licensee or invitee, determines the duty
that is owed to the entrant while he or she is on a
landowner’s property.’’ (Internal quotation marks omit-
ted.) Cuozzo v. Orange, 178 Conn. App. 647, 655, 176
A.3d 586 (2017), cert. denied, 328 Conn. 906, 177 A.3d
1159 (2018). ‘‘Ordinarily, the status of one who sustains
injury while upon the property of another is a question
of fact.’’ (Internal quotation marks omitted.) Moonan
v. Clark Wellpoint Corp., 159 Conn. 178, 185, 268 A.2d
384 (1970); see also Roberts v. Rosenblatt, 146 Conn.
110, 112, 148 A.2d 142 (1959). ‘‘Where, however, the
facts essential to the determination of the plaintiff’s
status are not in dispute, a legal question is presented.’’
(Internal quotation marks omitted.) Gargano v. Azpiri,
110 Conn. App. 502, 506, 955 A.2d 593 (2008); see also
Brown v. Robishaw, 282 Conn. 628, 633, 922 A.2d 1086
(2007) (‘‘[i]f . . . the evidence would not reasonably
support a finding of the particular issue, the trial court
has a duty not to submit it to the jury’’ [internal quota-
tion marks omitted]).
The plaintiff argues that he asked the court to charge
the jury on the definition of and the duty owed to a
licensee. He cites in his appellate brief to a proposed
jury instruction that states: ‘‘A licensee is a person who
is privileged to enter or remain on land only by virtue
of the possessor’s consent, that is, with the possessor’s
permission or with the possessor’s express or implied
consent.’’ (Emphasis in original.) See Connecticut Civil
Jury Instructions 3.9-3, available at http://www.jud.ct.-
gov/JI/Civil/Civil.pdf (last visited October 3, 2019).9 He
argues that the ‘‘evidence reasonably supported a find-
ing that [he], while on the defendant’s property on July
30, 2014, was there, if not with the possessor’s express
consent, then with its implied consent . . . .’’
While the civil jury instruction cited to by the plaintiff
contains the phrases ‘‘express consent’’ and ‘‘implied
consent,’’ those precise phrases do not appear in our
case law discussing the classification of someone enter-
ing onto someone else’s land. Rather, our Supreme
Court, guided by § 330 of the Restatement (First) of
Torts, has defined a licensee as ‘‘a person who is privi-
leged to enter or remain upon land by virtue of the
possessor’s consent, whether given by invitation or
permission.’’ (Emphasis added; internal quotation
marks omitted.) Laube v. Stevenson, 137 Conn. 469,
473, 78 A.2d 693 (1951); see also Salaman v. Waterbury,
246 Conn. 298, 305, 717 A.2d 161 (1998) (same).
Although our Supreme Court has made clear that
licensee status can be established by demonstrating
that the possessor of the land gave someone permission
or an invitation to enter the property, only a few cases
following our Supreme Court’s adoption of the licensee
definition discuss such status, and they shed little light
on precisely what a plaintiff entrant is required to show
in order to establish that it received the requisite
consent.
For example, in Salaman v. Waterbury, supra, 246
Conn. 301, an administrator of a swimmer’s estate
brought an action against the defendant city for prem-
ises liability negligence, after the swimmer drowned
while swimming across a reservoir owned by the city.
The jury returned a verdict in favor of the plaintiff, but
the court ultimately granted the city’s motion to set
aside the verdict and for judgment notwithstanding the
verdict, concluding that there was insufficient evidence
to impose either trespasser or licensee liability. Id.,
303. This court disagreed and reversed the trial court’s
judgment. Id. Our Supreme Court then granted certifica-
tion to appeal. Id., 304. After defining ‘‘licensee,’’ the
court went on to note that ‘‘[i]n order to prove that the
decedent was a licensee, the plaintiff was required to
prove that the decedent was on the city’s land with its
permission or by its express or implied invitation.’’10
Id., 306.
In construing this statement by our Supreme Court,
it is unclear whether licensee status can also be estab-
lished by implied permission. One could argue that the
absence of the phrase ‘‘express or implied’’ before the
word ‘‘permission’’ suggests that the court intended to
preclude proof of licensee status by implied permission.
One could also argue that our Supreme Court’s use
of the phrase ‘‘implied invitation’’ was intended to be
interchangeable with ‘‘implied permission.’’ The court
in Salaman, however, did not reach the issue of whether
the swimmer was in fact a licensee or provide any
further analysis on his status. The court concluded that
it need not examine the record to determine if there
was some evidence from which the jury reasonably
might have concluded that the decedent was a licensee
because, even if it assumed that the decedent was a
licensee, the evidence did not support a finding that
the city breached any duty to the decedent as a licensee.
Id, 306.
Older case law, however, suggests that implied per-
mission may be sufficient to establish licensee status.
For example, in Katsonas v. Sutherland Building &
Contracting Co., 104 Conn. 54, 132 A. 553 (1926), which
was decided prior to our Supreme Court’s adoption
of its current licensee definition, stated that ‘‘when a
landowner tacitly permits certain acts upon his prop-
erty, a license to do these acts may be inferred from
his failure to object . . . .’’
In an attempt to clarify this ambiguity and determine
what proof is permissible to establish licensee status,
we turn our attention to the comments of § 330 of the
Restatement (First) of Torts, the section from which
our Supreme Court adopted the licensee definition.
Comment (a) to that section states: ‘‘ ‘Invitation’ and
‘permission.’ An invitation differs from a permission
only in this: an invitation is conduct which justifies
others in believing that the possessor desires them to
enter; a permission is conduct justifying others in
believing that the possessor is willing that they shall
enter if they desire to do so. It is immaterial whether
the consent which creates the license is an invitation
originating with the possessor of the land or by a permis-
sion given upon request made by the licensee. The
important fact is that the entry is by the consent of the
possessor and it is immaterial that the suggestion of
the visit originates with him or with his licensee.’’ 2
Restatement (First), Torts § 330, comment (a), p. 893
(1934).
Furthermore, comment (b) to § 330 of the
Restatement (First) of Torts states: ‘‘ ‘Toleration’ and
‘permission.’ The word ‘permission’ indicates that the
possessor’s conduct is such as to give others reason to
believe that he consents to their entering the land if
they desire to do so. A mere failure to object to another’s
entry may be a sufficient manifestation of consent
thereto if the possessor knows of the other’s intention
to enter and has reason to believe that his objection
is likely to be effective in preventing the other from
entering. On the other hand, the fact that the possessor
knows of the other’s intention to enter and does not
prevent it may not be of itself a sufficient manifestation
of consent and, therefore, is not necessarily permission.
A failure to take burdensome and expensive precau-
tions against intrusion manifests an unwillingness to
go to the trouble and expense of preventing others from
trespassing upon the land and expresses toleration of
the practically unavoidable rather than consent to their
entry as licensees. Even a failure to post a notice warn-
ing the public not to trespass cannot reasonably be
construed as an expression of consent to the intrusions
of persons who habitually and notoriously disregard
such notices.’’ (Emphasis added.) Id., comment (b),
p. 893–94.
Additionally, comment (d) to § 330 of the
Restatement (First) of Torts states in relevant part:
‘‘License created otherwise than by words. The consent
which is necessary to confer a license to enter land,
may be expressed by acts other than words. Here again
the decisive factor is the interpretation which a reason-
able man would put upon the possessor’s acts.’’ Id.,
comment (d), p. 894.
In light of the guidance provided in the comments to
§ 330 of the Restatement (First) of Torts, and in light
of the myriad cases from other jurisdictions recognizing
that both express and implied permission is sufficient
to render an entrant a licensee; see, e.g., Fitzsimmons
v. State, 42 A.D. 2d 636, 637, 345 N.Y.S.2d 171
(1973) (‘‘[a] licensee is one who enters the premises for
his own benefit without invitation, but with permission,
express or implied, of the owner or person in posses-
sion’’), aff’d, 34 N.Y.2d 739, 313 N.E.2d 790, 357 N.Y.S.2d
498 (1974); we are assuming, arguendo, that express or
implied permission, in addition to an express or implied
invitation, if established, can render an entrant a
licensee.
In the present case, we must determine if the court
properly concluded, as a matter of law, that the evi-
dence did not reasonably support a finding that the
plaintiff was a licensee. See Gargano v. Azpiri, supra,
110 Conn. App. 506 (‘‘[w]here . . . the facts essential
to the determination of the plaintiff’s status are not in
dispute, a legal question is presented’’ [internal quota-
tion marks omitted]).
We conclude that the essential facts in the present
case are not in dispute, and, thus, the determination of
the plaintiff’s status is a question of law. The essential
facts are as follows: The plaintiff is an avid bicyclist;
he entered the private campus of the defendant on his
bicycle; he did not stop at the clearly visible guardhouse
located near the two main roads accessing the buildings
on campus, but took the road that avoided it by riding
to the right of it; there were no ‘‘no trespassing’’ signs
present; there were not gates at every entrance to the
campus; the plaintiff was not employed by the defen-
dant at the time of the accident; he was not a student
or a parent of a student attending the university; he
had no other purpose for being on campus other than
his desire to continue his bike ride through the campus,
which he had done one previous time a year earlier;
and there was no evidence that the defendant knew of
the plaintiff’s prior bike ride on the campus a year
earlier.
On the basis of the record before us, we have little
difficulty concluding that the court properly declined
to give the jury a licensee instruction. The evidence in
the present case did not reasonably support a conclu-
sion that the plaintiff was a licensee—that is, that he
received an express or implied invitation or express or
implied permission to enter the campus. Indeed, there
was no evidence of the defendant’s having explicitly or
implicitly expressed a desire that the plaintiff enter its
campus, nor was there any evidence of the defendant’s
having expressed a willingness that he do so. See 2
Restatement (First), supra, § 330, comment (a), p. 893.
The plaintiff primarily argues that the defendant
impliedly gave him consent to ride his bicycle on the
campus because there was a lack of ‘‘no trespassing’’
signs and no gate or the like at each and every entrance
to the campus. The lack of ‘‘no trespassing’’ signs or a
gate at each entrance, however, without some addi-
tional evidence demonstrating implied consent, is insuf-
ficient to send the question of whether the plaintiff was
a licensee to the jury. See 2 Restatement (First), supra,
§ 330, comment (b), p. 894 (‘‘[e]ven a failure to post a
notice warning the public not to trespass cannot reason-
ably be construed as an expression of consent’’). Put
another way, there is insufficient evidence in the record
before us demonstrating that the defendant’s conduct,
either expressly or implicitly, made others believe that
the defendant was willing to let them enter the campus
if they desired to do so. If we were to adopt the plaintiff’s
reasoning and permit liability to be imposed in situa-
tions such as these, ‘‘no trespassing’’ signs will go up,
along with fences and gates, barring access to many
private properties now used for recreational purposes,
creating closed enclaves throughout our state. The soci-
etal impact, and concomitant cost, of such a ruling
would be significant. See, e.g., Salaman v. Waterbury,
supra, 246 Conn. 307 (‘‘A rule requiring a property owner
to post warning signs about the dangers inherent in
swimming is unreasonable. In Connecticut, a small
state, hundreds of miles of shoreline would be exposed
to this unreasonable requirement. Property owners who
have water on their land are entitled to assume that a
reasonable adult would be aware of the risk of drowning
in a body of water.’’) We, therefore, conclude that the
court did not err in declining to instruct the jury on
licensee status and its corresponding duty of care.11
Moreover, even if we were to assume that the plaintiff
in this case was a licensee, we would be unable to
conclude that the evidence supports a finding that the
defendant breached any duty to the plaintiff as a
licensee. See Salaman v. Waterbury, supra, 246 Conn.
306. ‘‘The duty that a . . . [landowner] owes to a
licensee . . . does not ordinarily encompass the
responsibility to keep the property in a reasonably safe
condition, because the licensee must take the premises
as he [or she] finds them. . . . If the licensor actually
or constructively knows of the licensee’s presence on
the premises, however, the licensor must use reason-
able care both to refrain from actively subjecting him
[or her] to danger and to warn him [or her] of dangerous
conditions which the possessor knows of but which he
[or she] cannot reasonably assume that the licensee
knows of or by reasonable use of his [or her] faculties
would observe.’’ (Citations omitted; internal quotation
marks omitted.) Morin v. Bell Court Condominium
Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992).
The plaintiff would have been required to establish
that the defendant breached the duty owed to a licensee.
On the basis of our review of the evidence, no jury
reasonably could have concluded that the defendant
breached that duty even if one assumes the plaintiff
was a licensee. In particular, there was no claim or
evidence to support a finding that the defendant actively
subjected the plaintiff to danger. Thus, the defendant’s
duty to the plaintiff, had he in fact been a licensee,
would be to ‘‘warn him [or her] of dangerous conditions
which the possessor knows of but which he [or she]
cannot reasonably assume that the licensee knows of
or by reasonable use of his [or her] faculties would
observe.’’ (Internal quotation marks omitted.) Id., 329.
We are simply unwilling to conclude that on a sunny
and clear day, a plainly visible bright yellow speed bump
located on a paved road, even if on a hill, can be consid-
ered a hidden, dangerous condition. In fact, there was
testimony that speed bumps ‘‘are a known hazard to
bicyclists.’’ Moreover, there was no evidence before the
jury demonstrating that the defendant was aware of
this alleged defect. In particular, there was no evidence
that the defendant was aware that the way that the
speed bump was constructed rendered the premises
unsafe. Here, under the circumstances of this case, the
plaintiff should have been aware of the dangers of riding
his bicycle over a speed bump as he proceeded down
the hill with no intention of obeying the stop sign that
lay just beyond the speed bumps. See, e.g., Hanks v.
Powder Ridge Restaurant Corp., 276 Conn. 314, 336
n.12, 885 A.2d 734 (2005) (‘‘[t]he risks inherent in each
type of recreational activity will necessarily vary, and it
is common knowledge that some recreational activities
are inherently more dangerous than others’’); see also
Rivera v. Glen Oaks Village Owners, Inc., 41 A.D.
3d 817, 820, 839 N.Y.S.2d 183 (2007) (‘‘[b]y engaging in
a sport or recreational activity, a participant consents
to those commonly-appreciated risks which are inher-
ent in and arise out of the nature of the sport generally
and flow from such participation’’) Even if we had
assumed the plaintiff was a licensee, we would con-
clude on the facts of the present case that the defendant
was not required to warn the plaintiff of the obvious
dangers of his actions.
Lastly, we conclude that the general verdict rule
applies to defeat the plaintiff’s remaining claim that the
court improperly permitted Officer Melendez to esti-
mate the speed of the plaintiff’s bicycle. ‘‘[The general
verdict] rule operates . . . to insulate a verdict that
may have been reached under a cloud of error, but
which also could have been reached by an untainted
route.’’ Dowling v. Finley Associates, Inc., supra, 248
Conn. 376. ‘‘[It] applies whenever a verdict for one party
could reasonably have been rendered on one or more
distinct causes of action or distinct defenses. . . . [A]
defendant[’s] denial of negligence and . . . allegations
of contributory negligence constitute two discrete
defenses, either of which could [support a] jury’s gen-
eral verdict. . . . The verdict [could be] predicated on
the defendant[’s] freedom from negligence or on the
plaintiff’s comparatively greater negligence. . . . In
light of [a] plaintiff’s failure to request interrogatories
to ascertain the basis of the jury’s verdict, [the verdict]
must [be] uph[eld] . . . under the general verdict rule,
if either defense is legally supportable. . . . Further,
if the trial court’s instructions to the jury are shown to
be proper and adequate as to any of the defenses raised,
the general verdict must stand, regardless of error, if
any, in the charge as to any other defense.’’12 (Citations
omitted.) Staudinger v. Barrett, 208 Conn. 94, 99–100,
544 A.2d 164 (1988).
Because the general verdict rule applies, we must
presume that the jury found every issue in favor of the
defendant. We, therefore, conclude that the jury found
that the defendant was not negligent. The plaintiff’s
remaining evidentiary claim, that the court improperly
permitted Officer Melendez to estimate the speed of
the plaintiff’s bicycle, relates only to the contributory
negligence special defense. As such, it is precluded by
the general verdict rule; see Segale v. O’Connor, 91
Conn. App. 674, 680, 881 A2d 1048 (2005); and does not
require further discussion.
The judgment is affirmed.
In this opinion KELLER, J., concurred.
1
The plaintiff gave the following testimony:
‘‘Q. And on the day of the accident, no one invited you to go onto the
campus, is that fair to say?
‘‘A. Correct.
‘‘Q. And no one gave you permission to enter the campus?
‘‘A. Correct.
‘‘Q. You just decided to go up the hill and go onto the campus?
‘‘A. Correct.
‘‘Q. And you never worked there?
‘‘A. Correct.
‘‘Q. You weren’t a student there?
‘‘A. Correct.
‘‘Q. You were never a student there?
‘‘A. Never.
‘‘Q. You didn’t know anybody who worked there?
‘‘A. Correct.
‘‘Q. So, your sole purpose of going onto the campus that day was just to
go for a bike ride?
‘‘A. Correct.
‘‘Q. And [the defendant] is a private university, is that so?
‘‘A. Yes.
‘‘Q. All right. So, you went onto private property to go for your bike ride?
‘‘A. Correct.’’
2
In our view, the dissent places too much weight on Officer Juan Melendez’
following testimony in support of its argument that ‘‘visitors without any
affiliation with the defendant were generally permitted [on campus] unless
they appeared suspicious’’:
‘‘Q. . . . [I]t’s within the—and that person is not affiliated with the univer-
sity, it’s within the discretion of the officer then on duty to let that person
up; is it not?
‘‘A. Yes, it is.
‘‘Q. And is it fair to say that unless that person appears to be suspicious
in some way that you, as the guard at the guardhouse, would be inclined
to exercise your discretion to let that person up.
‘‘A. Yes.’’
Notably, Officer Melendez additionally testified to the following:
‘‘Q. When you were assigned to the [defendant’s] York Hill campus in the
guardhouse, what were your—what were your responsibilities?
‘‘A. My responsibilities when I was assigned there was to man that gate,
stop traffic, make sure—ask for [identification cards], determine who was
coming on campus and what are their nature; what are they there for. One
of the reasons they have us ask for student [identification cards] is because
we would have people that may want to come on campus that are not
students or affiliated with the [defendant], and we do not want to have
people that do not belong there there. Because if something happens there
could—hurt somebody or do something that they’re not, you know, of
criminal intent. So, that’s why they have us there.
‘‘Q. Is [the defendant] a private university?
‘‘A. It’s private.
‘‘Q. And the property of York Hill campus that’s private property?
‘‘A. That’s a private property. . . .
‘‘Q. Back on July 30, 2014, what was the practice and procedure of guards,
such as yourself, public safety officers, if someone had stopped at the
guardhouse going up the York Hill campus?
‘‘A. You would ask in—you would ask them for their information, their
[identification card], and their business there. If they were a student, faculty,
staff, and—you would let them go because they would have a decal on
their vehicle.’’
3
The dissent’s supposition that ‘‘the only apparent purpose of the guard-
house was to limit vehicular access’’ is not supported by the record. The
testimony on the issue from Officer Melendez was that ‘‘[t]he reason there’s
a guardhouse is for security reasons. [The defendant has] a student popula-
tion that [it is] responsible for.’’ Likewise, Barbara Barbuito, the assistant
director of facilities for the defendant’s York Hill campus, testified as follows:
‘‘Q. Why is there a guardhouse in that location?
students, and student parents, and our staff. . . .
‘‘Q. I mean security, are—are you concerned about the security of the
students, their safety at campus?
‘‘A. Yes.
‘‘Q. Is that—could you tell us whether or not that’s a reason why there’s
a guardhouse there?
‘‘A. That is the reason why there’s a guardhouse, so, there’s only specific
people that are allowed past that guardhouse. . . .
‘‘Q. Is the guardhouse occupied?
‘‘A. Yes.
‘‘Q. And who occupies the guardhouse?
‘‘A. Public safety.
‘‘Q. And how often does public safety occupy the guardhouse?
‘‘A. 24/7.
‘‘Q. Does that include the summer time?
‘‘A. Yes.
‘‘Q. And on July 30, 2014, was the guardhouse—did the guardhouse have
somebody in it?
‘‘A. Yes.
‘‘Q. Why was there somebody in the guardhouse?
‘‘A. For safety.
‘‘Q. What are the responsibilities of a public safety officer of [the defen-
dant] who’s assigned to that guardhouse?
‘‘A. So, he is not to allow anyone, other than a student, staff member,
faculty, or a parent up in the area where the dorms are located. . . .
‘‘Q. Could you tell us whether or not it’s the responsibility of who’s
ever assigned to the guardhouse to stop people from entering that area of
campus? . . .
‘‘A. Yes.
‘‘Q. Is [the defendant] a private or public university?
‘‘A. Private.
‘‘Q. And is the York Hill campus part of the [defendant]?
‘‘A. Yes.
‘‘Q. Is that private or public?’’
‘‘A. Private.
‘‘Q. Does [the defendant] have a policy regarding individuals who come
onto the campus who are not students, faculty, staff?
‘‘A. I believe it’s a verbal policy that no one is allowed in the areas where
the student dorms are.
‘‘Q. And was that policy in place on July 30, 2014?
‘‘A. Yes.
‘‘Q. If someone rode up on a bicycle to the open campus where the
guardhouse [was] back on July 30, 2014, what was the procedure that was
in place at the time for public safety?
‘‘A. They would stop them, and ask for [identification], and ask them what
they were doing on campus.
‘‘Q. And, again, why would they do that?
‘‘A. For the safety of the students.’’
4
The plaintiff testified to the following on cross-examination:
‘‘Q. Exactly. So, rather than go up to the guardhouse to check in at the
guardhouse, you took a right?
‘‘A. Correct.
‘‘Q. You didn’t see what the sign said?
‘‘A. Correct.
‘‘Q. Because you avoided the guardhouse by going to the right?
‘‘A. Correct.
‘‘Q. So, obviously, you didn’t stop at the guardhouse and check in?
‘‘A. Correct.’’
On redirect examination the plaintiff testified to the following:
‘‘Q. Did you purposely avoid the guardhouse?
‘‘A. No, I came down by the guardhouse.’’
5
The plaintiff gave the following testimony:
‘‘Q. And you saw these speed bumps as you were going down the hill?
‘‘A. Correct.
‘‘Q. And the speed bumps were yellow?
‘‘A. Correct.
‘‘Q. And they were bright yellow?
‘‘A. Yes.
‘‘Q. Yes? And you had no difficulty seeing them?
‘‘A. No.’’
6
The plaintiff gave the following testimony:
‘‘Q. My question is, you were not planning on stopping at the stop sign
at the bottom of the hill, is that correct?
‘‘A. To make a full stop, no, that—we don’t—we never stop, make full
stops unless there was traffic or something. That’s just what bicyclists do.
When we get to a stop sign, we look both ways, if there’s nothing coming,
we—I mean, we slow until maybe one or two miles an hour. But to stop
means we have to get out of our pedals and put our feet down. . . .
‘‘Q. I think you just said that you were going to slow, but, you were—
you were not going to stop. Were you planning on stopping that day?
‘‘A. Was I planning on coming to a full stop, probably not. . . .
‘‘Q. Right. So, you didn’t plan on stopping?
‘‘A. Not to a full stop, no. . . .
‘‘Q. My question is this, you didn’t plan on stopping at the guardhouse,
is that correct?
‘‘A. That’s correct.
‘‘Q. Okay. And you didn’t plan on stopping at the stop sign, is that correct?
‘‘A. That is correct.’’
7
Officer Melendez gave the following testimony:
‘‘Q. Had you seen [the plaintiff] before the moment when you observed
him being thrown off the bike?
‘‘A. Yes.
‘‘Q. Where did you observe him?
‘‘A. I saw him come up the hill, and they went out through the backend
of the—of the campus where the armed gate is situated.
‘‘Q. So—so you saw him enter the campus?
‘‘A. I saw him en—enter—I saw him go up the campus, but they didn’t
go by me or by the guardhouse.
‘‘Q. They went up by the wind—by the wind farm.
‘‘A. By the wind farm.
‘‘Q. Okay. Did you call to any—withdrawn. Were there any other officers
on campus at that time?
‘‘A. There was another patrol officer.
‘‘Q. Did you call to the other patrol officer to alert him to the presence
of—of the bicyclists?
‘‘A. At the time I did not do that. That’s one of the reasons why I was
out of the guardhouse. I was looking in the general area, seeing traffic,
observing my—observing my surroundings. And—I—and usually I was
expecting them to come back.
‘‘Q. Okay. So, about how much time passed from the moment when while
standing outside of the guardhouse you observed them, the two—there were
two riders?
‘‘A. There were two riders.
‘‘Q. When you observed them right up the road past the wind farm to the
time when they came back?
‘‘A. Well, when they were coming up the hill, I was still in the guardhouse
when they went back through the wind farms. There was a time I couldn’t
tell you how long. And that’s when I exited the guardhouse and decided to
look around the area; observe my area.’’
Officer Melendez further testified:
‘‘Q. And can you just explain for the ladies and gentlemen of the jury
again, why you were not in the guardhouse and where you were?
‘‘A. I was in front of the guardhouse, towards the left side of it. I was
surveying my area, my post. I had [seen] bicycles—bicyclists come up, and
I thought they were still in the general area, but they didn’t come by my
gate. So, I was just surveying my area.’’
8
The court instructed the jury on the duty owed to a trespasser as well
as to a constant trespasser. Although used infrequently, our Supreme Court
has recognized the status of constant trespasser where a heightened duty is
owed when the possessor of land has knowledge that trespassers constantly
intrude upon a limited area of the land. See Morin v. Bell Court Condomin-
ium Assn., Inc., 223 Conn. 323, 333, 612 A.2d 1197 (1992). The court charged
the jury as follows: ‘‘If a possessor of the land has knowledge that the
trespassers constantly intrude upon a limited area of the land, the possessor
of the land is liable for an artificial condition that caused injury to the
trespasser on that part of the land if all of the following are met. The condition
is one that the possessor has created or maintains and the condition is
one that to the possessor’s knowledge is likely to cause death or serious
bodily harm to such trespasser. And the condition is of such nature—of
such a nature that the possessor has reason to believe that such trespasser
will not discover it. And the possessor has failed to use reasonable care to
warn such trespassers of [the] artificial condition and the risk involved.’’
9
The Connecticut Civil Jury Instructions state on page one of the collec-
tion: ‘‘This collection of jury instructions was compiled by the Civil Jury
Instruction Committee and is intended as a guide for judges and attorneys
in constructing charges and requests to charge. The use of these instructions
is entirely discretionary and their publication by the Judicial Branch is not
a guarantee of their legal sufficiency.’’ Connecticut Civil Jury Instructions,
available at https://jud.ct.gov/JI/Civil/Civil.pdf (last visited October 3, 2019).
10
Our Supreme Court has explained that a person ‘‘might be found to
have been impliedly invited if he came to the premises under either of two
sets of facts: First, because he was led to believe that [the premises] were
intended to be used by visitors or passengers, and that such use was not
only acquiesced in by the owner or person in possession and control of the
premises, but that it was in accordance with the intention and design with
which the way or place was adapted and prepared or allowed to be so used;
or, secondly, he was using them with the acquiescence, actual or implied,
of the defendant in pursuance of a matter of mutual interest.’’ (Citation
omitted; internal quotation marks omitted.) Dym v. Merit Oil Corp., 130
Conn. 585, 588–89, 36 A.2d 276 (1944).
11
We note that even if it was error for the court not to send the question
of whether the plaintiff was a licensee to the jury, the plaintiff’s one sentence
harmfulness argument contained in his appellate brief was insufficient to
address the harm of the court’s alleged error. See MacDermid, Inc. v.
Leonetti, 328 Conn. 726, 749, 183 A.3d 611 (2018) (‘‘Specifically, with respect
to jury instructions, we have explained that [i]t is axiomatic . . . that not
every error is harmful. . . . [W]e have often stated that before a party is
entitled to a new trial . . . he or she has the burden of demonstrating that
the error was harmful.’’ [Internal quotation marks omitted.]).
In light of the court’s constant trespasser jury instruction; see footnote
8 of this opinion; which is substantially similar to the licensee instruction
the plaintiff seeks, it would have been incumbent upon the plaintiff to
address sufficiently the harm with respect to the court’s alleged error. See
MacDermid, Inc. v. Leonetti, supra, 328 Conn. 748 (‘‘without adequate brief-
ing on the harmfulness of an alleged error, the defendant is not entitled to
review of [the] claim on the merits’’ [internal quotation marks omitted]).
12
This court’s recent decision in Farmer-Lanctot v. Shand, 184 Conn.
App. 249, 194 A.3d 839 (2018), illustrates this principle. In Farmer-Lanctot,
two defenses, a denial of negligence and a special defense of contributory
negligence, could have supported the general verdict, and there was a claim
of instructional error as to each ground. Id., 254. This court, therefore,
considered the first claim of instructional error, which pertained to the
negligence claim, as part of its analysis into whether there was a properly
and adequately instructed defense that supported the verdict. Id., 254–59.
This court concluded that the general verdict rule applied because there
was no error in the instructions on the negligence claim, and, therefore, it
did not need to consider the claimed errors relating to contributory negli-
gence. Id., 258–59.