Garcia v. Cohen , 188 Conn. App. 380 ( 2019 )

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USSBASY GARCIA v. ROBERT COHEN ET AL.
(AC 41079)
Lavine, Prescott and Bishop, Js.
Syllabus
The plaintiff tenant sought to recover damages from the defendants for
negligence in connection with personal injuries she suffered when she
fell on the rear exterior stairs of certain premises owned by the defen-
dants. After the plaintiff submitted to the trial court a request to charge
the jury and proposed jury interrogatories, the court declined to use
the proposed charge and did not submit the interrogatories to the jury,
which returned a general verdict for the defendants. The court rendered
judgment in accordance with the verdict, from which the plaintiff
appealed to this court. She claimed 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. Held that the general verdict
rule precluded review of the plaintiff’s claim on appeal; given that the
defendants denied the plaintiff’s allegation that they failed to maintain
the stairs where she fell and pleaded special defenses alleging that she
was comparatively negligent, that the jury returned a general verdict in
favor of the defendants and that interrogatories were not submitted to
the jury, this court did not know whether the trial court found that the
defendants were not negligent or that the plaintiff was more than 50
percent negligent, and although the plaintiff requested interrogatories,
she failed to object when the trial court did not submit her interrogatories
to the jury, which was a functional equivalent of a failure to request inter-
rogatories.
Argued January 3—officially released March 12, 2019
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ 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where the action was withdrawn in part; thereafter, the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;
thereafter, the court, Dubay, J., issued an articulation
of its decision. Affirmed.
John Serrano, for the appellant (plaintiff).
Keith S. McCabe, with whom, on the brief, was Alli-
son Reilly-Bombara, for the appellees (defendants).
Opinion
LAVINE, J. The plaintiff, Ussbasy Garcia, appeals
from the judgment of the trial court, rendered after a
jury trial, in favor of the defendants, Robert Cohen and
Diane N. Cohen. On appeal, the plaintiff claims that the
court erred by rejecting her request to charge and failing
to instruct the jury that the possessor of real property
has a nondelegable duty to maintain the premises. We
affirm the judgment of the trial court.
The record discloses the following facts that the jury
reasonably could have found on the basis of the evi-
dence presented at trial. On January 19, 2014, the defen-
dants owned the premises at 390 West Main Street, New
Britain, where the plaintiff was a tenant in a second
floor apartment. At approximately 11:45 that morning,
the plaintiff was carrying a basket of laundry down the
rear, exterior stairs of the premises when she fell and
sustained serious injuries to her left leg and ankle.
The plaintiff commenced a defective premises action
against the defendants in January, 2016.1 The plaintiff
alleged that her injuries were proximately caused by
the defendants’ negligence in that they failed to keep
the stairs free of dirt and sand; permitted the steps to
become pitted, worn, and uneven; and failed to warn
of the slippery condition of the stairs. The defendants
denied the material allegations of the complaint and
alleged certain special defenses in that the plaintiff’s
injuries were the result of her own negligence.2 The
plaintiff denied the allegations of the special defenses.
At trial, Robert Cohen testified, among other things,
that he owned several properties and that three or four
people worked with him to maintain the premises. He
hired a contractor to take care of the lawn and remove
snow. The plaintiff submitted a request to charge3 and
proposed jury interrogatories.4 The court declined to
use the plaintiff’s proposed charge and did not submit
the interrogatories to the jury.5 Following the presenta-
tion of evidence, the jury returned a verdict in favor of
the defendants. The plaintiff thereafter filed a motion
to set aside the verdict on the ground that (1) the verdict
was contrary to law in that the court failed to properly
charge the jury in accordance with her request to
charge, (2) the court failed to submit her proposed
jury interrogatories to the jury, and (3) the verdict was
against the evidence. The plaintiff also filed a motion
for a new trial. The defendants objected to both the
plaintiff’s motion to set aside the verdict and her motion
for a new trial. The court denied the plaintiff’s motion
to set aside the verdict and her motion for a new trial.
The plaintiff appealed and thereafter filed a motion
for articulation with the trial court. The court granted
the motion for articulation and stated: ‘‘The factual and
legal basis for the court’s not charging on nondelegable
duty are set forth in [the] defendants’ memorandum [of
law] in support of [their] objection to [the] plaintiff’s
motion for a new trial . . . . The court specifically
adopted the legal basis and factual analysis in its ruling.
There was no evidence or argument that anyone other
than the defendants [were] responsible for the mainte-
nance of the stairway.’’
On appeal, the plaintiff claims that the court erred
in refusing to give her proposed charge that the pos-
sessor of real property has a nondelegable duty to main-
tain the premises in a reasonably safe condition for
invitees. During oral argument before us, we asked the
parties whether the appeal was controlled by the gen-
eral verdict rule and invited counsel to submit supple-
mental briefs on the question.6 We now conclude that
review of the plaintiff’s appeal is precluded by the gen-
eral verdict rule. See Curry v. Burns, 225 Conn. 782,
793, 626 A.2d 719 (1993) (general verdict rule applies
on appeal to preclude certain claims).
Our Supreme Court has held that ‘‘the general verdict
rule applies to the following five situations: (1) denial
of separate counts of a complaint; (2) denial of separate
defenses pleaded as such; (3) denial of separate legal
theories of recovery or defense pleaded in one count
or defense, as the case may be; (4) denial of a complaint
and pleading of a special defense; and (5) denial of a
specific defense, raised under a general denial, that had
been asserted as the case was tried but that should
have been specially pleaded.’’ (Emphasis added; inter-
nal quotation marks omitted.) Tetreault v. Eslick, 271
Conn. 466, 472, 857 A.2d 888 (2004). In the present case,
the defendants denied the allegations of the complaint
and pleaded special defenses.
‘‘The general verdict rule provides that if a jury ren-
ders a general verdict for one party, and no party
requests interrogatories, an appellate court will pre-
sume that the jury found every issue in favor of the
prevailing party. . . . In circumstances in which a
party has requested interrogatories that fail to flesh out
the basis of the jury’s verdict, this court has noted that
the general verdict rule is still applicable because [i]t is
not the mere submission of interrogatories that enables
[the reviewing court] to make that determination;
rather, it is the submission of properly framed interroga-
tories that discloses the grounds for the jury’s decision.
. . . [I]n a case in which the general verdict rule oper-
ates, if any ground for the verdict is proper, the verdict
must stand; only if every ground is improper does the
verdict fall. . . .
‘‘On the appellate level, the rule relieves an appellate
court from the necessity of adjudicating claims of error
that may not arise from the actual source of the jury
verdict that is under appellate review. In a typical gen-
eral verdict rule case, the record is silent regarding
whether the jury verdict resulted from the issue that
the appellate seeks to have adjudicated. Declining in
such a case to afford appellate scrutiny of the appel-
lant’s claims is consistent with the general principle of
appellate jurisprudence that it is the appellant’s respon-
sibility to provide a record upon which reversible error
may be predicated.’’ (Citations omitted; emphasis in
original; internal quotation marks omitted.) Beck-
enstein Enterprises-Prestige Park, LLC v. Keller, 115
Conn. App. 680, 685–86, 974 A.2d 764, cert. denied, 293
Conn. 916, 979 A.2d 488 (2009).
‘‘Our Supreme Court has held that the general verdict
rule applies, inter alia, to a situation in which there has
been a denial of a complaint along with the pleading
of a special defense.’’ Turturino v. Hurley, 98 Conn.
App. 259, 262, 907 A.2d 1266 (2006). That is precisely
the situation in the present case. The defendants denied
the plaintiff’s allegation that they failed to maintain the
stairs where she fell. They also pleaded special defenses
that alleged that the plaintiff was comparatively negli-
gent in several ways. The jury returned a general verdict
in favor of the defendants. Interrogatories were not
submitted to the jury. We, therefore, do not know
whether it found that the defendants were not negligent
or that the plaintiff was more than 50 percent negligent.
Although the plaintiff requested that interrogatories
be submitted to the jury, the court did not do so and
the plaintiff failed to object. See footnote 5 of this opin-
ion. ‘‘This court has stated that the failure of the plain-
tiffs to object to jury deliberation without
interrogatories is the functional equivalent of a failure
to request interrogatories.’’ (Internal quotation marks
omitted.) Malaguit v. Ski Sundown, Inc., 136 Conn.
App. 381, 387, 44 A.3d 901, cert. denied, 307 Conn.
902, 53 A.3d 218 (2012). Moreover, the plaintiff has not
claimed on appeal that the court erred by failing to
submit her interrogatories to the jury. For the foregoing
reasons, the plaintiff’s claim on appeal is not
reviewable.7
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff’s complaint sounded in three counts: common-law negli-
gence, violation of the municipal housing code, and violation of the state
housing code. Prior to trial, the plaintiff withdrew the counts alleging housing
code violations.
2
The defendants alleged that ‘‘the injuries and damages suffered by the
plaintiff, if any, were the result of her own negligence and carelessness, in
that she:
‘‘a. Failed to watch where she was stepping;
‘‘b. Failed to step over, away from or around the defective and dangerous
condition she claims existed;
‘‘c. Failed to be attentive to her surroundings; and
‘‘d. Failed to exercise that degree of care that an ordinarily prudent person
would have exercised while using the premises under the circumstances
and conditions then existing.’’
3
The plaintiff requested that the court charge that ‘‘[t]he defendant Robert
Cohen, as the one in control of the premises, had what we call a nondelegable
duty to maintain the safety of the premises. This means that he owed a duty
to exercise ordinary care to maintain the premises in a reasonably safe
condition. The plaintiff . . . had no duty to maintain the premises in a
safe condition.
‘‘Although the defendant may contract out the performance of that duty,
he may not contract out ultimate legal responsibility. In other words, the
defendant is responsible for the damages to which the plaintiff may be
entitled as a result of his negligence, and he cannot escape liability for any
such injury by claiming he had contracted with someone else to maintain
the premises in a reasonably safe condition.’’
4
The plaintiff filed the following proposed jury interrogatories:
‘‘1. Were the plaintiff’s fall and resulting injuries and losses caused by the
defendants’ negligence and carelessness in failing to maintain the steps of
the rear staircase at the premises clean, clear and free of dirt and sand?
‘‘2. Were the plaintiff’s fall and resulting injuries and losses caused by the
defendants’ negligence and carelessness in allowing the surface of the steps
of the rear staircase at the premises to become pitted, worn and uneven?
‘‘3. Were the plaintiff’s fall and resulting injuries and losses caused by
her failure to exercise the degree of care that an ordinary person would
have exercised while using the premises under the circumstances and condi-
tions then existing?’’
5
The record discloses the following colloquy between the court and coun-
sel for the plaintiff:
‘‘The Court: . . . Any preliminary matters?
‘‘[The Plaintiff’s Counsel]: 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: Yeah, I don’t think the interrogatories are necessary inasmuch
as I’m . . . . 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 intend to, charge the jury on
the duties that are owed to an invitee. Okay.
‘‘[The Plaintiff’s Counsel]: Very well. Thank you . . . for considering
them.’’
6
We sua sponte issued an order stating that ‘‘[t]he parties are hereby . . .
permitted to file supplemental briefs of no more than ten pages on or before
January 14, 2019, to address the following question: does the general verdict
rule apply to the reviewability of the issues in this appeal?’’
7
The record discloses that shortly before the jury returned its general
verdict, it sent a note to the court asking what would happen if it concluded
that neither side was negligent. We, however, cannot presume that the
jury decided the case on the basis of that conclusion when it resumed
its deliberations.