Morin v. Bell Court Condominium Ass'n , 25 Conn. App. 112 ( 1991 )

Spallone, J.

The plaintiff appeals from the judgment of the trial court rendered in favor of the defendant after the court granted the defendant’s motions to set aside the jury’s verdict and for judgment notwithstanding the verdict. On appeal, the plaintiff claims that the trial court (1) improperly refused to instruct the jury to determine whether the plaintiff was an invitee or a licensee, (2) improperly concluded that there was insufficient evidence to sustain the verdict, and (3) applied an improper standard of law regarding constructive notice of the plaintiff’s presence on the premises to the motion to set aside the verdict. We affirm the judgment of the trial court.

The evidence that was introduced at trial indicates the following. At the time of the incident, the plaintiff was an East Hartford police officer. The defendant, Bell Court Condominium Association, Inc., is the representative body of a condominium complex. Ten Bell Court is a three story section of the condominium complex with two apartments on each floor and is served by a front and rear common hallway and staircase.

On May 13,1986, the plaintiff responded to a radio dispatch warning of a fire at Bell Court. Upon arriving at the scene, the plaintiff entered the rear common entrance and, while in the process of evacuating apartments on the three floors of 10 Bell Court, fell while descending the common staircase. A stairway defect caused the plaintiff’s fall.

At the conclusion of the evidence, the trial court instructed the jury as to the duty owed by a possessor of land to a licensee. The plaintiff’s counsel objected to the charge, maintaining that the determination of the plaintiff’s status as a licensee was a factual issue that should be decided by the jury. The trial court overruled the objection and the plaintiff took an exception.

The jury returned a general verdict for the plaintiff. The defendant filed a motion to set aside the verdict and, after a hearing, the trial court granted the defendant’s motion on the ground that there was no evidence on which the jury could have reasonably concluded that the defendants knew or should have known of the plaintiff’s presence on the premises at the time and place of the incident.

The plaintiff first claims that the trial court improperly instructed the jury that the status of the police officer plaintiff was that of a licensee. The plaintiff asserts that the question of the police officer’s status was one of fact for the jury to determine. We disagree.

“Ordinarily, the status of one who sustains injury while upon the property of another is a question of fact. Dickau v. Rafala, 141 Conn. 121, 124, 104 A.2d 214 [1954]; Girard v. Kabatznick, 128 Conn. 520, 525, 24 A.2d 257 [1942]; Knapp v. Connecticut Theatrical Corporation, 122 Conn. 413, 417, 190 A. 291 [1937]. Where, however, the facts essential to the determination of the plaintiff’s status are not in dispute, a legal question is presented. Ward v. Avery, 113 Conn. 394, 396, 155 A. 502 [1931]; Rooney v. Woolworth, 74 Conn. 720, 723, 52 A. 411 [1902]; Arthur v. Standard Engineering Co., 193 F.2d 903, 906 [D.C. Cir. 1951], cert. denied, 343 U.S. 964, 72 S. Ct. 1057, 96 L. Ed. 1361 [1952].” Roberts v. Rosenblatt, 146 Conn. 110, 112-13, 148 A.2d 142 (1959); see also Moonan v. Clark Wellpoint Corporation, 159 Conn. 178, 185, 268 A.2d 384 (1970). The essential facts in this case are that the plaintiff was a member of the East Hartford police department, the defendants were property owners within East Hartford, and the plaintiff entered upon that property in the performance of a public duty in response to a fire alarm and was injured while upon the premises owing to an alleged defect therein.

On the basis of these facts, the court properly instructed the jury that, as a matter of law in Connecticut, the plaintiff, a police officer who entered upon the premises in the performance of a public duty, occupied a status akin to that of a licensee and that the defendants owed him no greater duty than that due a licensee. Furstein v. Hill, 218 Conn. 610, 623-24, 590 A.2d 939 (1991); Roberts v. Rosenblatt, supra, 113; Carfora v. Globe, Inc., 5 Conn. App. 526, 500 A.2d 958, cert. denied, 198 Conn. 804, 503 A.2d 1186 (1985); State v. Plummer, 5 Conn. Cir. Ct. 35, 38, 241 A.2d 198 (1967); 2 Restatement (Second), Torts § 345, comment c.

In order to establish liability as to a licensee, three essential elements must be present: (1) that the defendant knew of the presence of the plaintiff; (2) that it thereafter failed to exercise reasonable care to refrain from actively subjecting the plaintiff to danger or to warn him of a dangerous condition of which it knew and of which it could not reasonably assume the licensee knew or which by reasonable use of his faculties would observe; and (3) that such failure constituted the proximate cause of the plaintiffs injuries. Hennessey v. Hennessey, 145 Conn. 211, 213, 140 A.2d 473 (1958). “The duty which a licensor owes to a licensee on the licensor’s premises does not arise where there is no actual knowledge on the part of the licensor of the licensee’s presence or where there are no circumstances from which such knowledge could be imputed to the licensor. See Haffey v. Lemieux, 154 Conn. 185, 189, 224 A.2d 551 (1966); Lubenow v. Cook, [137 Conn. 611, 614, 79 A.2d 826 (1951)]; Ward v. Avery, 113 Conn. 394, 397, 155 A.2d 502 [1931].” Corcoran v. Jacovino, 161 Conn. 462, 468, 290 A.2d 225 (1971). There was no evidence adduced at trial that the defendant had actual knowledge of the plaintiff’s presence on the premises prior to the accident. In order for the plaintiff to prevail, therefore, the evidence must show that the circumstances were such that the knowledge of the plaintiff’s presence could be imputed to the defendant.

Such circumstances are sufficient to impute knowledge of presence to the defendant only where they are “the equivalent of actual knowledge.” Corcoran v. Jacovino, supra. This equivalent arises where the defendant could have and should have reasonably anticipated the plaintiff’s presence on the premises because of the regular pattern of such presence at the approximate time of day and place of the injury as, for example, where a mailman delivers mail each day. Id. The plaintiffs presence thus becomes reasonably predictable and forseeable. See also Derby v. Connecticut Light & Power Co., 167 Conn. 136, 142, 355 A.2d 244 (1974), cert. denied, 421 U.S. 931, 95 S. Ct. 1659, 44 L. Ed. 2d 88 (1975); Haffey v. Lemieux, supra.

Although there was testimony that the plaintiff had been on the premises in the past, as had other police officers, in response to tenants’ complaints, this knowledge is not imputable to the defendant. In order to charge the defendant with knowledge of the plaintiff’s presence, either actual or constructive, the evidence must show that the plaintiff had used a particular portion of the premises with such reasonable regularity that there was a predictable pattern of previous use and that the jury could find from such evidence that the defendant had the equivalent of actual knowledge of the plaintiff’s presence in the stairwell at the approximate time he was there. Corcoran v. Jacovino, supra. Unless there is an historical pattern of prior usage, that is, usage with reasonable regularity as a particular place and at an approximate time, then the trier of fact cannot find that the plaintiff’s appearance on the premises and his use of the premises has become reasonably predictable. Haffey v. Lemieux, supra, 188-89. Although the evidence indicated that the plaintiff and other officers had come to the premises on several occasions, the police calls did not come in any particular pattern or with any particular regularity. Accordingly, the circumstances are insufficient in this case to impute the knowledge of the plaintiff’s presence at the time and the place of the injury to the defendant.

The plaintiff asserts that the trial court should have applied a broader standard of constructive knowledge in reviewing the defendant’s motion to set aside the verdict, allowing recovery if the plaintiff or some other member of the public regularly passed over the premises. The trial court, however, followed applicable law in determining the scope of constructive knowledge as applied to this case.¹

Accordingly, we hold that in setting aside the verdict and in rendering judgment for the defendant notwithstanding the verdict, the trial court acted correctly and in accordance with applicable law.

The judgment is affirmed.

In this opinion Landau, J., concurred.

1 A broader standard of liability is sometimes applied where the premises are open to the public. 2 Restatement (Second), Torts § 345 (2). Comment (e) on subsection (2) provides in part: “Where the premises are held open for the use of the public, and a fireman or policeman enters upon a part of the premises which is so held open, and at a time when it is open, he may reasonably assume that reasonable care has been used to prepare the land for the reception of the public, and to make it safe for them. . . . The visitor is therefore entitled to the status of an invitee . . . .”

In this case, where the premises are private residential units, there is no evidence that the premises were held open for the use of the public.