Allen v. Shoppes at Buckland Hills, LLC ( 2021 )

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CHARLES ALLEN v. SHOPPES AT BUCKLAND
HILLS, LLC, ET AL.
(AC 42828)
Moll, Cradle and Clark, Js.
Syllabus
The plaintiff, an off duty East Granby police officer, sought to recover
damages for personal injuries that he sustained after being hit by a car
while he was on the premises of a shopping mall owned by the defendant
B Co. in Manchester. While in the parking lot of the shopping mall, he
heard a radio broadcast indicating a pursuit of a suspected participant
in a crime and was injured after he joined that pursuit and was struck
by the car that the suspect entered, which was driven by C. The plaintiff
alleged that his injuries were a result of the negligence of B Co., and
A Co., which provided security services for B Co., for, inter alia, chasing
the suspect into the mall parking lot. Following a jury verdict and
judgment for the defendants, the plaintiff appealed to this court, claiming
that the trial court improperly instructed the jury on superseding cause,
improperly instructed the jury on the statutory (§ 54-1f) duties of off
duty police officers, and failed to instruct the jury on the duties owed
by a possessor of land to invitees. Held:
1. The plaintiff could not prevail on his claim that the trial court’s charge
to the jury on the doctrine of superseding cause was improper and
harmful, as it was not reasonably probable that the jury was misled by
the trial court’s instruction on the doctrine; the court’s charge, read as
a whole, was correct in law, adapted to the issues, and was sufficient
for the guidance of the jury, as the court charged the jury that, in order
for the defendants to prevail on their special defense that C’s conduct
was a superseding cause of the plaintiff’s injuries, the defendants had
to demonstrate that C had intentionally or criminally struck the plaintiff
with his car, and, the jury, on the interrogatories, found that C’s conduct
was both intentional or criminal and not foreseeable, and there was
ample evidence presented to show that C’s conduct was intentional or
criminal, including the plaintiff’s testimony and his statement to the
police that the driver of the vehicle had looked at him then reversed
the car into him.
2. The plaintiff could not prevail on his claims that the court improperly
instructed the jury as to the reasonableness of his actions as an off duty
police officer pursuant to § 54-1f and his status as an invitee on B Co.’s
property, as he did not satisfy his burden that the purported errors were
harmful; once the jury concluded that C’s conduct was both intentional
or criminal and not foreseeable, it did not have occasion to consider
the reasonableness of the plaintiff’s conduct or his status as an invitee,
but, instead, pursuant to the instructions on the interrogatory form, it
completed the defendants’ verdict form as to B Co. and A Co.
Argued April 7—officially released July 27, 2021
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of the alleged negligence of the named
defendant et al., and for other relief, brought to the
Superior Court in the judicial district of Hartford, where
the court, Hon. A. Susan Peck, judge trial referee,
granted the plaintiff’s motion to cite in AlliedBarton
Security Services, LLC, as a defendant and granted the
town of East Granby’s motion to intervene as a plaintiff;
thereafter, the plaintiff withdrew the action as to the
defendant Professional Security Consultants, Inc.; sub-
sequently, the named defendant et al. filed a notice of
apportionment as to Reshawn Champion and Hoffman
of Simsbury, Inc.; thereafter, the matter was tried to
the jury before Graham, J.; verdict for the named defen-
dant et al.; subsequently, the court, Graham, J., denied
the plaintiff’s motions to set aside the verdict, for a new
trial, and for judgment notwithstanding the verdict and
rendered judgment in accordance with the verdict, from
which the plaintiff appealed to this court. Affirmed.
Mario Cerame, with whom was Timothy Brignole,
for the appellant (plaintiff).
Eric W. F. Niederer, with whom was Tyler W. Hum-
phrey, for the appellees (named defendant et al.).
Opinion
MOLL, J. The plaintiff, Charles Allen, appeals from
the judgment of the trial court rendered in accordance
with the jury verdict in favor of the defendants Shoppes
at Buckland Hills, LLC (Buckland Hills), and AlliedBar-
ton Security Services, LLC (AlliedBarton), the company
that provided security services for Buckland Hills.1 The
plaintiff claimed that he had suffered serious physical
injuries when he attempted to stop what he believed
was a serious crime at Buckland Hills, a shopping mall,
while off duty from his position as a police officer with
the town of East Granby. The plaintiff claims on appeal
that the court improperly (1) instructed the jury on
superseding cause, (2) instructed the jury that General
Statutes § 54-1f imposes a restriction, rather than an
affirmative duty, on off duty police officers, and (3)
failed to instruct the jury on duties owed by a possessor
of land to invitees. We affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts, which are largely undisputed in this case. On May
21, 2014, the plaintiff, an off duty police officer with
the town of East Granby, purchased some books at the
Barnes and Noble bookstore located at Buckland Hills.
He exited the mall in order to put the books in his truck,
intending to go back into the mall to make another
purchase. After putting the bag in his truck, the plaintiff
heard what he believed were police radios. He heard a
radio broadcast stating that ‘‘we have a black male
running into the mall, and we have a black female in
the parking lot. We lost her.’’ The plaintiff then observed
a woman run out from between cars and away from
individuals who were chasing her. The woman, who
was carrying a couple of big bags, ran diagonally in
front of the plaintiff. The plaintiff ran toward the woman
and said, ‘‘Police, stop.’’ The woman looked over her
shoulder and continued to run; the plaintiff ran behind
her. When the woman arrived at a waiting vehicle, she
threw the bags into the car and pivoted into the passen-
ger seat. The plaintiff leaned in toward the car,
attempting to put his hand on the woman’s shoulder.
The driver of the vehicle, later identified as Reshawn
Champion, looked over his shoulder at the plaintiff, and
then put the car in reverse. The plaintiff was struck in
the face and leg by the open passenger door and suf-
fered personal injuries.
On January 29, 2016, the plaintiff commenced the
present action. See footnote 1 of this opinion. Following
the filing of the plaintiff’s second amended complaint
(i.e., the operative complaint), which asserted one
count of negligence against each defendant in connec-
tion with the chase of the shoplifting suspect in the
mall parking lot, the defendants filed an answer and
two special defenses. The first special defense alleged
that the plaintiff was negligent by, inter alia, injecting
himself into a situation without knowledge or apprecia-
tion of the facts then and there existing. The second
special defense alleged that the damages and occur-
rences alleged by the plaintiff were the result of an
independent and/or intervening cause, including the
actions of Champion.
Following trial, the jury found in favor of the defen-
dants. In response to jury interrogatories, the jury found
that the plaintiff had not proven that Buckland Hills
was negligent, but the jury was silent as to whether the
plaintiff had proven negligence on the part of AlliedBar-
ton. The jury found, however, that the defendants had
proven that Champion’s conduct was both (1) inten-
tional or criminal, and (2) not foreseeable, and, there-
fore, was the superseding cause of the plaintiff’s injur-
ies.2 Following the denial of the plaintiff’s motion to
set aside the verdict, motion for new trial, and motion
for entry of judgment notwithstanding the verdict, the
plaintiff filed the present appeal in which he raises three
claims of instructional error.
Before addressing the plaintiff’s claims, we set forth
the standard of review applicable to claims of instruc-
tional error. ‘‘A jury instruction must be considered in
its entirety, read as a whole, and judged by its total
effect rather than by its individual component parts.
. . . [T]he test of a court’s charge is not whether it is
as accurate upon legal principles as the opinions of a
court of last resort but whether it fairly presents the
case to the jury in such a way that injustice is not done
to either party under the established rules of law. . . .
As long as [the instructions] are correct in law, adapted
to the issues and sufficient for the guidance of the jury
. . . we will not view the instructions as improper. . . .
Therefore, [o]ur standard of review on this claim is
whether it is reasonably probable that the jury was
misled.’’ (Internal quotation marks omitted.) Farmer-
Lanctot v. Shand, 184 Conn. App. 249, 255, 194 A.3d
839 (2018). Furthermore, ‘‘[n]ot every error is harmful.
. . . [B]efore a party is entitled to a new trial . . . he
or she has the burden of demonstrating that the error
was harmful. . . . An instructional impropriety is
harmful if it is likely that it affected the verdict.’’ (Inter-
nal quotation marks omitted.) Kos v. Lawrence + Memo-
rial Hospital, 334 Conn. 823, 845, 225 A.3d 261 (2020).
I
The plaintiff first claims that the court’s jury charge
on superseding cause was improper and harmful. Spe-
cifically, the plaintiff argues that the court erred in
failing to instruct the jury with regard to any particular
crimes, whether a crime had been committed, or the
legal meaning of ‘‘criminal event.’’ The defendants argue
in response that the doctrine of superseding cause
applies in this case, as the evidence supports a finding
that Champion’s conduct was criminal or intentional.
The defendants further argue that the court’s charge
was proper, as Champion’s conduct fell within the
parameters outlined by our Supreme Court in Barry v.
Quality Steel Products, Inc., 263 Conn. 424, 820 A.2d
258 (2003), and Snell v. Norwalk Yellow Cab, Inc., 332
Conn. 720, 212 A.3d 646 (2019). We agree with the defen-
dants.
The following additional facts are necessary for the
resolution of this claim. On December 4, 2018, the plain-
tiff filed a request to charge that included a charge on
superseding cause. According to the plaintiff’s pro-
posed charge, in order for the defendants to succeed on
their claim that Champion’s conduct was a superseding
cause of the plaintiff’s injuries, they had to prove that
Champion’s conduct was intentional and that the con-
duct was unforeseeable by a reasonable person. The
plaintiff did not request that the court charge that Cham-
pion’s conduct had to be intentional or criminal in order
for the superseding cause instruction to apply, nor did
the plaintiff request a charge on what constitutes a
criminal act or the elements of any crime.
On December 12, 2018, the court heard argument on
the plaintiff’s motion for a directed verdict, in which
he argued that, based on the evidence presented at
trial, it would be speculative for the jury to find that
Champion’s conduct was intentional or criminal, as
required by Barry v. Quality Steel Products, Inc., supra,
263 Conn. 439 n.16. In denying the plaintiff’s motion, the
court stated: ‘‘The jury can, if they choose to, interpret
a driver who sees somebody, backs over him swiftly
with the door open, and then backs down the entire
remaining length of the parking lot lane, as indicating
intent. I also think you do not have to be charged with
a crime in order for the jury to find somebody acted
in a criminal manner. I think the jury generally under-
stands that you’re not supposed to see somebody and
then back over them after you see them with a car and
then flee the scene.’’
At a charge conference that followed the argument
on the motion for a directed verdict, counsel for the
plaintiff questioned the court’s proposed charge on
superseding cause because it was not clear that Champi-
on’s conduct had to be intentional or criminal in order
for the defendants to prevail.3 The court made a minor
modification to its proposed charge to address the plain-
tiff’s concern. On December 13, 2018, the court charged
the jury in relevant part:
‘‘Superseding cause. A superseding cause is any inten-
tionally harmful act or criminal event, unforeseeable
by the defendant, which intervenes in the sequence of
events leading from the defendant’s alleged negligence
to the plaintiff’s alleged injury and proximately causes
that injury. Under our law, the intervention of such a
superseding cause prevents the defendants from being
held liable for the plaintiff’s injury on the theory that,
due to such superseding cause, the defendants did not
legally cause the injury even though their negligence
was a substantial factor in bringing the injury about.
Therefore, when a claim of superseding cause is made
at trial by way of the second special defense, the defen-
dants must prove the essential elements of that claim
by a fair preponderance of the evidence in order to
prove, by that standard, their special defense.
‘‘In this case, the defendants claim, more particularly,
that Reshawn Champion striking the plaintiff with his
vehicle after he became aware of the plaintiff’s presence
was a superseding cause of the plaintiff’s alleged injury,
and thus that the defendants’ own negligence did not
legally cause that injury. Because such intentionally
harmful conduct, if unforeseeable by the defendants,
would constitute a superseding cause of the plaintiff’s
alleged injury if it occurred as claimed by the defendants
and if it proximately caused the plaintiff’s injury, the
defendants must prove the essential elements of that
claim by a fair preponderance of the evidence in order
to prove that the defendants are not causally liable.
‘‘The defendants can meet this burden by proving:
One, that the conduct claimed to constitute a supersed-
ing cause, specifically Champion intentionally or crimi-
nally striking the plaintiff with his car, occurred as
claimed by the defendants; and, two, that such conduct
was not foreseeable by the defendants, in that the injury
in question was not within the scope of the risk created
by the defendants’ conduct; and, three, that such con-
duct of Champion was a substantial factor in bringing
about the plaintiff’s alleged injury.
‘‘These, of course, are questions of fact for you to
determine based on the evidence. Keep in mind, how-
ever, that the defendants have the burden to prove the
existence of a superseding cause. The burden at all
times rests upon the defendants to prove the defen-
dants’ claim of superseding cause as [their] second spe-
cial defense.
‘‘Intentional act. I have instructed you regarding
superseding cause. Within that instruction, you will
recall that the act must be intentionally harmful or
criminal in order for that instruction to apply. In order
for the act, in this case Mr. Champion striking the plain-
tiff with his vehicle, to be deemed intentional, both the
conduct producing the injury and the resulting injury
must be intentional. The resulting injury is deemed to
be intentional when the bodily harm inflicted was a
direct and actual consequence of the offensive conduct.
If you find that Mr. Champion intended to strike the
plaintiff with his vehicle and the plaintiff’s injuries were
a direct and natural consequence of that offensive con-
duct, then you would find that Mr. Champion’s conduct
was intentional.’’
Counsel for the plaintiff took exception to the court’s
charge, stating, inter alia, that ‘‘there’s confusion in
the instruction as to the significance and meaning and
construction of the word ‘criminal act.’ ’’ The court did
not revise its charge based on the plaintiff’s objection.
On December 17, 2018, the jury sent a note to the court
with two questions pertaining to proximate cause. The
second question asked in relevant part: ‘‘If the warrant4
for Champion had been issued and he was tried and
found guilty, would this case have been able to pro-
ceed?’’5 (Footnote added.) In response to the note, the
court indicated that it would not address a hypothetical
situation but reminded the jury that the defendants had
the burden to prove both that Champion’s conduct was
intentional or criminal and that Champion’s conduct
was not foreseeable.
On December 17, 2018, the jury found in favor of the
defendants. The jury completed interrogatories indicat-
ing that it found that the plaintiff had not proven that
Buckland Hills was negligent; the jury did not indicate
whether the plaintiff had proven negligence on the part
of AlliedBarton. See footnote 2 of this opinion. The jury
found, however, that the defendants had proven that
Champion’s conduct was both (1) intentional or crimi-
nal and (2) not foreseeable and, therefore, was a super-
seding cause of the plaintiff’s injuries. See footnote 2 of
this opinion. The court thereafter denied the plaintiff’s
motion to set aside the verdict and motion for a new
trial, in which he argued, inter alia, that the court
improperly failed to charge on the meaning of ‘‘criminal
act’’ for the purposes of superseding cause. The court
also denied the plaintiff’s motion for judgment notwith-
standing the verdict.
We next set forth the applicable law regarding the
doctrine of superseding cause. A ‘‘superseding cause is
an act of a third person or other force which by its
intervention prevents the actor from being liable for
harm to another which his antecedent negligence is a
substantial factor in bringing about. . . . The function
of the doctrine of superseding cause is not to serve
as an independent basis of liability, regardless of the
conduct of a third party whose negligent conduct may
have contributed to the plaintiff’s loss. The function of
the doctrine is to define the circumstances under which
responsibility may be shifted entirely from the shoul-
ders of one person, who is determined to be negligent,
to the shoulders of another person, who may also be
determined to be negligent, or to some other force.
. . . Thus, the doctrine of superseding cause serves as
a device by which one admittedly negligent party can, by
identifying another’s superseding conduct, exonerate
himself from liability by shifting the causation element
entirely elsewhere.’’ (Citations omitted; emphasis in
original; footnote omitted; internal quotation marks
omitted.) Barry v. Quality Steel Products, Inc., supra,
263 Conn. 434.
‘‘In light of the significant changes to our tort system
implemented by tort reform . . . [our Supreme Court]
determined in Barry [v. Quality Steel Products, Inc.,
supra, 263 Conn. 434] that the doctrine of superseding
cause no longer serves a useful purpose in our jurispru-
dence when a defendant claims that a subsequent negli-
gent act by a third party cuts off its own liability for the
plaintiff’s injuries. [In such] circumstances, superseding
cause instructions serve to complicate what is funda-
mentally a proximate cause analysis. . . . [B]ecause
our statutes allow for apportionment among negligent
defendants; see General Statutes § 52-572h; and
because Connecticut is a comparative negligence juris-
diction; General Statutes § 52-572o; the simpler and less
confusing approach to cases . . . [in which] the jury
must determine which, among many, causes contrib-
uted to the [plaintiff’s] injury, is to couch the analysis
in proximate cause rather than allowing the defendants
to raise a defense of superseding cause.’’ (Internal quo-
tation marks omitted.) Snell v. Norwalk Yellow Cab,
Inc., supra, 332 Conn. 748–49.
‘‘In reaching [its] determination in Barry, [our
Supreme Court] expressly limited [its] holding to cases
in which a defendant claims that its tortious conduct
is superseded by a subsequent negligent act or there
are multiple acts of negligence, stating that [its] decision
did not necessarily affect those cases [in which] the
defendant claims that an unforeseeable intentional tort,
force of nature, or criminal event supersedes its tortious
conduct. . . . Later, [our Supreme Court] made clear
that [its] holding in Barry did not affect those types
of cases.’’ (Citation omitted; internal quotation marks
omitted.) Id., 750.
In the present case, the plaintiff argues that the
court’s failure to instruct the jury on the meaning of a
criminal act or the elements of a crime as part of its
charge on superseding cause invited the jury to engage
in speculation. A review of the court’s charge, however,
reflects that the court properly charged on the law of
superseding cause as set forth in Barry v. Quality Steel
Products, Inc., supra, 263 Conn. 424, and Snell v. Nor-
walk Yellow Cab, Inc., supra, 332 Conn. 720. Specifi-
cally, the court charged that, in order for the defendants
to prevail on this special defense, the defendants had
to demonstrate that the conduct claimed to constitute
a superseding cause—specifically, Champion intention-
ally or criminally striking the plaintiff with his car—
occurred as they claimed. The court later charged that,
in order for the instruction on superseding cause to
apply, the act must be intentionally harmful or criminal.6
Furthermore, in its responses to the jury interrogato-
ries, the jury found that the defendants had proven,
by a preponderance of the evidence, ‘‘that Reshawn
Champion’s conduct was both (a) intentional or crimi-
nal, and (b) not foreseeable.’’ See footnote 2 of this
opinion. The jury interrogatories did not require the
jury to specify whether Champion’s conduct was inten-
tional or criminal. The jury, however, was presented
with ample evidence from which it reasonably could
find that Champion’s conduct was intentional or crimi-
nal.7 Specifically, the plaintiff testified that he saw the
driver of the vehicle look over the driver’s shoulder at
him, and then put the car in reverse, striking him with
the door, which was still open. Daniel Pilz, an officer
with the Manchester Police Department, testified that
he was dispatched to the scene of the incident on May
21, 2014. While on the scene, and within minutes of
the incident, Pilz took the plaintiff’s statement. The
statement is included in the Manchester police report
that was admitted into evidence. The report states in
relevant part that the plaintiff saw the driver of the
vehicle ‘‘look over his shoulder at [the plaintiff], put
the car in reverse, [strike the plaintiff] with the door,
which was still open, put the car in drive and [pull] out
of the parking spot at a high rate of speed.’’
Tomasz Kaczerski, another officer with the Manches-
ter Police Department, was the next officer to arrive
on the scene. Kaczerski took the statement of Allen
Corthous, a mall security officer. Corthous’ statement,
which is also included in the Manchester police report,
provides in relevant part: ‘‘Once the female suspect got
into the vehicle, [the plaintiff] caught up to her and was
attempting to stop the female suspect. At that point, I
observed the male suspect put the car in reverse and
accelerate at a high rate of speed while striking [the
plaintiff] . . . with the car door. . . . The suspect
then put the car in drive and took off.’’ Kaczerski indi-
cated in his report that he believed that probable cause
existed to charge Champion with several crimes.8
In light of the case law concerning superseding cause
and the evidence as outlined above, we conclude that
the court’s charge, read as a whole, was correct in
law, adapted to the issues, and was sufficient for the
guidance of the jury. See Farmer-Lanctot v. Shand,
supra, 184 Conn. App. 255. We conclude, therefore, that
it is not reasonably probable that the jury was misled
by the court’s instruction on the doctrine of supersed-
ing cause.9
II
The plaintiff next claims that the court improperly
instructed the jury that § 54-1f10 imposed a restraint
rather than an affirmative duty on the plaintiff and failed
to instruct the jury regarding the heightened duty owed
to invitees to protect them from the foreseeably danger-
ous conduct of others. We consider these claims
together because, even assuming that the court’s charge
was improper with respect to these issues, the plaintiff
has not satisfied his burden of demonstrating that the
purported errors were harmful.
The following additional facts are necessary for the
resolution of these claims. On December 4, 2018, the
plaintiff filed a request to charge that included the fol-
lowing language: ‘‘The law states that a Connecticut
police officer shall arrest anyone who the officer has
reasonable grounds to believe has committed or is com-
mitting a felony. The law imposes this obligation even
if the officer does not have a warrant, and even if the
officer is outside of the area where he usually works.
Reasonable grounds to believe means a logical reason
to believe it is so. Stealing goods worth $2000 or more is
an example of a felony.’’ (Emphasis in original.) Counsel
and the court discussed the proposed charge during the
charge conference, during which the court expressed
concern about charging the jury that the plaintiff had
jurisdiction to act beyond the parameters authorized
by § 54-1f.
The court charged the jury: ‘‘In addition to the obliga-
tion to exercise reasonable care of a reasonably prudent
person, the plaintiff also had the obligations of an East
Granby police officer. As this incident took place in
Manchester, special circumstances must exist to autho-
rize the plaintiff to exercise his police powers: one,
he must have started a pursuit in East Granby that
continued to another jurisdiction, and there is no evi-
dence that such was the case here; two, he must be
responding to a medical emergency, and there is no
evidence of that here; three, he must be asked by
another police agency to assist in police activity; or
four, he must reasonably believe that a felony is being
or has been committed.
‘‘The plaintiff in this case also has the obligation to
exercise his police powers as a reasonably prudent
police officer would under the circumstances. You
should consider the special powers and obligations the
plaintiff had as an off duty police officer, along with
all the other evidence before you, in deciding whether
the plaintiff was negligent as alleged by the defendants.’’
After the court instructed the jury, the plaintiff took
exception to this portion of the charge.
On appeal, the plaintiff argues that the court’s charge
did not convey to the jury the affirmative duty to act
contained in § 54-1f (b). According to the plaintiff, in
order to determine whether the plaintiff acted reason-
ably, the jury needed to be instructed regarding the
affirmative duty to intervene. The plaintiff further
argues that, because the court did not charge on the
affirmative duty to act, the jury did not have enough
information to determine whether the plaintiff’s inter-
vention and injuries were foreseeable. Finally, the plain-
tiff argues that the court’s charge improperly failed to
include the definition of a felony.
With regard to the heightened duty owed to invitees,
the plaintiff requested that the court charge the jury that
‘‘the [defendants have] a duty to protect [the plaintiff]
against unreasonable risk of harm arising from the acts
of third parties. So long as the unreasonable risk of
harm from the third party is reasonably foreseeable,
then the defendant has a duty to protect the plaintiff
from third-party acts that are negligent, intentional, or
even criminal. In other words, if [the plaintiff’s] injuries
were the same general nature as a harm that the [defen-
dants] should have anticipated if they acted reasonably,
the defendants had an affirmative duty to protect [the
plaintiff] from that harm, even if [Champion] acted neg-
ligently, intentionally, or criminally. In that case, you
must find for [the plaintiff].’’ At the charge conference,
the court expressed concern about giving the charge
as requested by the plaintiff in the absence of a premises
defect. The court also expressed concern that the plain-
tiff’s requested charge was inconsistent with the doc-
trine of superseding cause and, ultimately, it declined
to deliver the requested charge.11 On appeal, the plaintiff
argues that the court improperly declined to instruct the
jury regarding the heightened duty that the defendants
owed to the plaintiff as a business invitee. According
to the plaintiff, the court improperly concluded that the
heightened duty applies only when there is a dangerous
physical defect, and that a proper charge would have
explained to the jury that the defendants would be
negligent if they exposed the plaintiff to an unreason-
able risk of criminal aggression, such as being run over
by a car in the parking lot.
The plaintiff cannot prevail on either of these claims,
however, because once the jury concluded that Champi-
on’s conduct was a superseding cause of the plaintiff’s
injuries, it did not have occasion to consider the reason-
ableness of the plaintiff’s conduct or the plaintiff’s sta-
tus as an invitee. Rather, pursuant to the instructions
on the interrogatory form; see footnote 2 of this opinion;
the jury proceeded to complete the defendants’ verdict
form as to both defendants once it found that Champi-
on’s conduct was both ‘‘(a) intentional or criminal, and
(b) not foreseeable.’’ Even assuming, therefore, that the
court’s charge was improper concerning § 54-1f and
the heightened duty owed to invitees, respectively, the
plaintiff has not satisfied his burden of demonstrating
that the purported errors were harmful.12 See Kos v.
Lawrence + Memorial Hospital, supra, 334 Conn. 845.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff initially brought this action against Buckland Hills and
Professional Security Consultants, Inc. The trial court thereafter granted
the plaintiff’s motion to cite in AlliedBarton as a defendant. On May 13,
2016, the trial court granted the town of East Granby’s motion to intervene
as a party plaintiff. On May 17, 2016, the plaintiff withdrew the action as
to Professional Security Consultants, Inc. On June 29, 2016, the defendants
filed apportionment complaints against Reshawn Champion, I. Bradley Hoff-
man, and Hoffman of Simsbury, Inc. On September 22, 2016, the defendants
withdrew the apportionment complaints. They also filed a notice of appor-
tionment as to Champion and Hoffman of Simsbury, Inc. The plaintiff and
the defendants Buckland Hills and AlliedBarton are the only parties who
are participating in this appeal, and all references herein to the plaintiff are
to Charles Allen, and all references herein to the defendants are to Buckland
Hills and AlliedBarton.
2
The relevant interrogatories and responses provide as follows:
‘‘1. Do you find that Charles Allen has proven by a preponderance of the
evidence that AlliedBarton Security Service, LLC, was both (a) negligent,
and (b) a proximate cause of Charles Allen’s injuries or harm?
‘‘ Yes No
‘‘IF THE ANSWER IS NO, COMPLETE THE DEFENDANT’S VERDICT
FORM AS TO ALLIEDBARTON SECURITY SERVICE, LLC. IN ANY EVENT,
CONTINUE TO THE NEXT QUESTION.
‘‘2. Do you find that Charles Allen has proven by a preponderance of the
evidence that Shoppes at Buckland Hills, LLC was both (a) negligent, and
(b) a proximate cause of Charles Allen’s injuries or harm?
‘‘ Yes X No
‘‘IF THE ANSWER IS NO, COMPLETE THE DEFENDANT’S VERDICT
FORM AS TO SHOPPES AT BUCKLAND HILLS, LLC. IF THE ANSWER TO
#1 OR #2 IS YES, CONTINUE.
‘‘3. Do you find that the defendants have proven by a preponderance of
the evidence that Reshawn Champion was both (a) negligent, and (b) a
proximate cause of Charles Allen’s injuries or harm?
‘‘X Yes No
‘‘4. Do you find that the defendants have proven by a preponderance of
the evidence that Reshawn Champion’s conduct was both (a) intentional
or criminal, and (b) not foreseeable?
‘‘X Yes No
‘‘IF THE ANSWER IS YES, COMPLETE THE DEFENDANT’S VERDICT
FORM AS TO BOTH DEFENDANTS. OTHERWISE CONTINUE.’’
3
Counsel stated that ‘‘[the proposed charge] doesn’t specifically indicate
to the jurors that they have to show in the—points one, two, three, the end
of the instruction that it was intentional or criminal or criminal act.’’
4
As discussed in footnote 8 of this opinion, the police issued a warrant
for Champion’s arrest following the incident at issue; the warrant, however,
was not signed by the prosecutor, as the plaintiff could not identify Champion
as the driver of the vehicle that struck him.
5
The note provided in its entirety: ‘‘If the warrant for Champion had been
issued and he was tried and found guilty, would this case have been able
to proceed? If so, what tests if any would remain? E.g., the 4th question,
would have part ‘a’ satisfied (guilty of a criminal act as a matter of public
record), but would ‘b’ that it ‘was not foreseeable’ in the jury’s interroga-
tory remain?’’
6
We note that in Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597,
609, 662 A.2d 753 (1995), a wrongful death action following the murder of
a customer by a third party in a parking garage owned and operated by the
defendant, the jury asked the court, on the fourth day of deliberations,
whether it needed to consider the nature of a crime when determining
causation. Our Supreme Court held that the trial court properly had answered
‘‘no’’ to the jury’s question and instructed in part that liability was not
contingent upon the actual type, extent, or severity of the criminal activity. Id.
7The plaintiff contends that the jury’s note, in which it asked whether
this case would have been able to proceed if the arrest warrant for Champion
had issued and he was convicted, showed that the jury was trying to under-
stand the meaning of criminality in the instruction. Contrary to the plaintiff’s
claim, however, we cannot speculate regarding what the jury discussed or
intended when it submitted its hypothetical question to the court. See Speed
v. DeLibero, 215 Conn. 308, 315, 575 A.2d 1021 (1990) (in considering whether
trial court properly denied motion for mistrial on basis of jury misconduct,
‘‘[a] reviewing court cannot, on appeal, speculate on what the jurors may
have discussed and then speculate that the discussion probably prejudiced
the plaintiff’’).
8
Kaczerski stated the following in his report: ‘‘Based on my investigation
this officer believes that probable cause exists to charge Reshawn Champion
with [a]ssault [in the second degree pursuant to General Statutes § 53a-60]
because he looked back at [the plaintiff] while [the plaintiff] was standing
directly next to his vehicle with the front door wide open and then he
intentionally put the car in reverse and accelerated at a high rate of speed
knowingly striking and causing serious physical injury to [the plaintiff]. This
officer believes that probable cause exists to charge Reshawn Champion
with [r]obbery [in the third degree pursuant to General Statutes § 53a-136]
because [Champion] used immediate force upon [the plaintiff] for the pur-
pose of resisting or overcoming being caught and keeping the stolen prop-
erty. Also with [r]eckless [d]riving [pursuant to General Statutes § 14-222
(a)] for driving at a high rate of speed through the parking lot while fleeing
from the mall with complete disregard to safety of others and with
[o]perating [u]nder [s]uspension [pursuant to General Statutes § 14-215 (a)]
for operating the courtesy vehicle while having his driving privileges sus-
pended. Warrant will follow.’’
In a supplement to the police report dated July 6, 2014, Kaczerski indicated
that the arrest warrant that he had completed was not signed by the prosecu-
tor as the plaintiff could not identify Champion as the driver because he
did not see Champion’s face. The supplement was included in the police
report that was admitted into evidence.
9
To the extent the plaintiff further argues, pursuant to Snell v. Norwalk
Yellow Cab, Inc., supra, 332 Conn. 724, that the jury’s verdict was inconsistent
with its interrogatory responses because the jury did not answer the interrog-
atory regarding AlliedBarton’s negligence; see footnote 2 of this opinion;
we conclude that the present case is distinguishable from Snell. In that case,
the plaintiff brought a negligence action against a taxicab driver, the taxicab
company, and its owner after she was struck by a taxicab that had been
stolen by two teenagers after the driver had left the vehicle unattended with
the key in the ignition in a neighborhood known to have a higher than
average crime rate. Id., 723. At trial, the defendants claimed that the conduct
of the two thieves was a superseding cause that relieved the driver of any
liability for his negligence. Id. The jury returned a verdict for the defendants
and indicated, in its responses to interrogatories, that, although the driver’s
negligence was a proximate cause of the plaintiff’s injuries, the accident
that ensued was outside the scope of the risk created by his negligence,
and, therefore, the defendants were not liable for the plaintiff’s injuries. Id.On appeal, this court affirmed the judgment of the trial court. Snell v.
Norwalk Yellow Cab, Inc., 172 Conn. App. 38, 158 A.3d 787 (2017), rev’d,
332 Conn. 720, 212 A.3d 646 (2019). Our Supreme Court, however, reversed
the judgment of this court based on its conclusion that the interrogatory
responses on which the jury verdict was based were inconsistent as a matter
of law. Snell v. Norwalk Yellow Cab, Inc., supra, 332 Conn. 742. Specifically,
although the trial court properly had charged the jury that only if it found
that the driver’s negligence was not a substantial factor in producing the
plaintiff’s injuries could it find that the actions of the teenagers who stole
the vehicle were a superseding cause of the injuries, the jury found both
that the driver’s negligence was a proximate cause of some or all of the
plaintiff’s injuries and that the actions of the teenagers who stole the vehicle
were a superseding cause of the injuries. Id., 765–67. In the present case,
by contrast, the jury concluded that Champion’s conduct was a superseding
cause of the plaintiff’s injuries. It did not also find that AlliedBarton was a
proximate cause of the plaintiff’s injuries.
10
General Statutes § 54-1f, titled ‘‘Arrest without warrant. Pursuit outside
precincts,’’ provides in relevant part: ‘‘(a) For purposes of this section, the
respective precinct or jurisdiction of a state marshal or judicial marshal
shall be wherever such marshal is required to perform duties. Peace officers,
as defined in subdivision (9) of section 53a-3, in their respective precincts,
shall arrest, without previous complaint and warrant, any person for any
offense in their jurisdiction, when the person is taken or apprehended in
the act or on the speedy information of others . . . .
‘‘(b) Members of the Division of State Police within the Department of
Emergency Services and Public Protection or of any local police department
or any chief inspector or inspector in the Division of Criminal Justice shall
arrest, without previous complaint and warrant, any person who the officer
has reasonable grounds to believe has committed or is committing a felony.
‘‘(c) Members of any local police department . . . when in immediate
pursuit of a person who may be arrested under the provisions of this section
. . . are authorized to pursue such person outside of their respective pre-
cincts into any part of the state in order to effect the arrest. Such person
may then be returned in the custody of such officer to the precinct in which
the offense was committed.
‘‘(d) Any person arrested pursuant to this section shall be presented with
reasonable promptness before proper authority.’’
11
Instead, the court delivered the following charge: ‘‘Duty of care. The
plaintiff had the status of an invitee. I will now explain what the law says
about the duty of the defendants to one who has that status. An invitee is
one who either expressly or impliedly has been invited to go on the premises
of the defendant mall. An invitee goes upon the premises at the express or
implied invitation of the possessor for the possessor’s benefit or for the
mutual benefit of both. One who goes upon land in the possession of another
as a business visitor is an invitee.
‘‘Because the plaintiff was an invitee of the mall and security was the
contracted agent of the mall, then the defendants owed him the duty to
conduct activities on the premises in a reasonable manner so as not to
injure the plaintiff.
‘‘It is not the law that the plaintiff is entitled to compensation merely
because he is injured while on the premises controlled by the defendants.
The defendants are not required to guarantee the safety of all persons on
the premises. Rather, the defendants are only liable for the resulting injuries
if the plaintiff meets the burden to prove the necessary elements of his
negligence claim . . . .’’
12
We also note, however, that the plaintiff’s argument that the defendants
owed him a heightened duty to protect against dangerous conduct of third
parties due to his status as an invitee runs counter to his argument that he
was appropriately exercising his police powers. ‘‘A business invitee is a
person who is invited to enter or remain on land for a purpose directly or
indirectly connected with business dealings with the possessor of the land.’’
(Internal quotation marks omitted.) Bisson v. Wal-Mart Stores, Inc., 184
Conn. App. 619, 627 n.9, 195 A.3d 707 (2018). In the present case, although
the plaintiff argues that he was an invitee because he was making purchases
at the mall, he has not pointed to any evidence indicating that he was invited
to assist in apprehending Champion during the chase in the parking lot.
The plaintiff’s theory of the case, rather, was that, at the time he approached
Champion’s vehicle, he was acting pursuant to his authority as an off duty
police officer with the town of East Granby. ‘‘It is well established that it
is error to instruct the jury on a doctrine or issue not supported by the
evidence offered at trial. . . . Jury instructions should be confined to mat-
ters in issue by virtue of the pleadings and evidence in the case.’’ (Citations
omitted; internal quotation marks omitted.) Kos v. Lawrence + Memorial
Hospital, supra, 334 Conn. 838.