Garcia v. Cohen

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USSBASY GARCIA v. ROBERT COHEN ET AL.
(SC 20285)
Palmer, McDonald, D’Auria, Mullins and Ecker, Js.
Syllabus
The plaintiff sought to recover damages from the defendant landlords, R
and D, for personal injuries that the plaintiff sustained when she slipped
and fell on a staircase outside of her apartment building. The plaintiff
claimed that the defendants were negligent in failing to keep the steps
of the staircase free of dirt and sand and by allowing the surface of the
steps to become pitted, worn and uneven. The defendants denied the
allegations of negligence and pleaded a special defense that contained
four specifications of contributory negligence. At trial, R testified that
other individuals helped him with snow removal at the property and
that, together, they would remove snow and spread salt and sand on
the staircase but that no one would return thereafter to clear the staircase
after spreading salt and sand. In light of R’s testimony, the plaintiff
requested that the trial court instruct the jury that the defendants had
a nondelegable duty to maintain the safety of the premises and to submit
to the jury three interrogatories that addressed certain grounds on which
it could determine liability. The trial court declined to instruct the jury
on the nondelegable duty doctrine or to submit the plaintiff’s proposed
interrogatories, determining that neither was necessary. After the trial
court charged the jury on the applicable law, which did not include an
explanation regarding the nondelegable duty doctrine, the trial court
asked counsel if there were an exceptions to the court’s charge, to
which the plaintiff’s attorney responded, ‘‘[o]ther than what I had filed
previously, no . . . .’’ The jury subsequently returned a verdict for the
defendants, and the trial court denied the plaintiff’s motions to set aside
the verdict and for a new trial, and rendered judgment for the defendants.
The plaintiff appealed to the Appellate Court, claiming that the trial
court had improperly rejected her request to charge and improperly
failed to instruct the jury on the defendants’ nondelegable duty to main-
tain the premises. The Appellate Court affirmed the trial court’s judg-
ment, concluding that the plaintiff’s claim of instructional error was not
reviewable. The Appellate Court reasoned that the general verdict rule
applied because the plaintiff did not object when the trial court declined
to submit her proposed interrogatories to the jury and did not specifically
claim on appeal that the trial court improperly failed to submit her
interrogatories to the jury. On the granting of certification, the plaintiff
appealed to this court, claiming that the general verdict rule did not
apply because she sought to submit properly framed interrogatories to
the trial court and plainly conveyed her objection to the court’s denial of
her request. The plaintiff further claimed that, on appeal to the Appellate
Court, she was not required to assert as an independent claim of error
that the trial court declined to submit her proposed interrogatories to
the jury. Held:
1. The Appellate Court incorrectly concluded that the general verdict rule
precluded it from reviewing the plaintiff’s claim of instructional error:
the plaintiff made every reasonable effort to avoid the application of
the rule by filing interrogatories, eliciting the trial court’s justification
for its decision not to submit them to the jury, and renewing her objection
after the trial court charged the jury on the applicable law, and, although
the plaintiff did not use the precise language, ‘‘I object,’’ she alerted the
court to her claim of instructional error, and the court explained the
reasoning for its decision while there was still an opportunity for correc-
tion; moreover, the interrogatories were properly framed even though
they did not address all four specifications of contributory negligence
in the special defense, as one of the interrogatories encompassed the
four factual allegations in the special defense that could have resulted
in a finding that the plaintiff’s negligence contributed to her injuries,
the single defense that the defendants raised, and the interrogatories
would have shed light on the verdict, as they could have eliminated any
negligence attributable to the plaintiff and fleshed out whether and on
what grounds the jury attributed any negligence to the defendants;
furthermore, the jury’s consideration of the plaintiff’s allegation of negli-
gence and the defendants’ special defense of contributory negligence
was intertwined with the plaintiff’s claim that the trial court improperly
declined to instruct the jury on the nondelegable duty doctrine, as
the jury could have concluded, without having had the benefit of an
instruction on that doctrine, that the individuals who helped R remove
the snow, rather than the defendants, acted negligently, and, therefore,
the jury had no untainted route to its verdict.
2. The Appellate Court incorrectly concluded that the plaintiff’s instructional
error claim was not reviewable on the ground that she had failed to
raise an independent claim of error on appeal with respect to the trial
court’s decision not to submit her proposed interrogatories to the jury:
the plaintiff clearly preserved her claim, as she plainly alerted the trial
court to her position by filing the interrogatories, addressing the trial
court’s decision not to submit them to the jury, and raising her objection
again after the trial court charged the jury on the applicable law; more-
over, the plaintiff made every reasonable effort to protect herself from
the consequences of a general verdict and had no reason to anticipate
that that rule would prevent review of her instructional error claim until
the Appellate Court raised the issue of the general verdict rule at oral
argument before that court.
Argued November 20, 2019—officially released March 17, 2020
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 certain counts of the complaint were withdrawn;
thereafter, the case was tried to the jury before Dubay,
J.; verdict and judgment for the defendants, from which
the plaintiff appealed to the Appellate Court, Lavine,
Prescott and Bishop, Js., which affirmed the judgment
of the trial court, and the plaintiff, on the granting of
certification, appealed to this court. Reversed; further
proceedings.
John Serrano, for the appellant (plaintiff).
Keith S. McCabe, for the appellees (defendants).
Opinion
D’AURIA, J. In this negligence action, a jury returned
a verdict finding the defendants, Robert Cohen and
Diane Cohen,1 not liable as landlords for injuries the
plaintiff, Ussbasy Garcia, suffered when she slipped
and fell on the staircase outside of her apartment build-
ing. The plaintiff appealed to the Appellate Court, claim-
ing that the trial court improperly rejected her request
to charge and to instruct the jury that, the defendants,
as the possessors of real property, had a nondeleg-
able duty to maintain the premises. Garcia v. Cohen,
188 Conn. App. 380, 381–82, 204 A.3d 1245 (2019). The
Appellate Court declined to review the plaintiff’s claim,
concluding that the general verdict rule applied because
the plaintiff had failed to object when the trial court
denied her request to submit her proposed interroga-
tories to the jury. Id., 386. Additionally, the Appellate
Court concluded that the plaintiff should have made,
but failed to do so, an independent claim of error on
appeal on the basis of the trial court’s denial of her
request to submit her proposed interrogatories to the
jury. Id., 386–87.
We disagree with the Appellate Court’s conclusion
that the general verdict rule bars appellate review of
the plaintiff’s jury instruction claim. The general verdict
rule does not apply in the present case because the plain-
tiff had requested that the trial court submit her prop-
erly framed interrogatories to the jury and had objected
when it denied her request. She properly framed her
interrogatories by submitting questions addressing her
claim of negligence and the defendants’ denial of negli-
gence and special defense of contributory negligence.
The claims of negligence and contributory negligence
are so intertwined with the plaintiff’s nondelegable duty
jury charge claim on appeal that the general verdict
rule does not bar review. Additionally, the plaintiff was
not required on appeal to assert an independent claim
of error on the basis of the trial court’s rejection of her
request to submit the interrogatories to the jury. Rather,
the plaintiff’s submission of interrogatories and her
objection upon the court’s refusal to submit them to
the jury is a defense to application of the general verdict
rule, not an independent claim of error. For these rea-
sons, we reverse the judgment of the Appellate Court
and remand the case to that court to undertake a review
of the trial court’s denial of the plaintiff’s request for
a jury instruction on the nondelegable duty doctrine.
The following undisputed facts and procedural his-
tory, as contained in the record and the Appellate
Court’s opinion, are relevant to this appeal. In the mid-
dle of winter, the plaintiff exited her second floor rental
apartment shortly before noon carrying a basket of
laundry. She went out the rear exit and descended the
exterior staircase. Before reaching the bottom of the
staircase, she slipped and fell, fracturing her left ankle
and tearing her left ankle deltoid ligament. She testi-
fied that she slipped because the fourth step had a lot
of sand on the surface and was not safe. The plaintiff
brought a premises liability action, alleging that her
landlords, the defendants, negligently and carelessly (1)
failed to maintain the steps clean, clear, and free of dirt
and sand, (2) allowed the surface of the steps to become
pitted, worn, and uneven, and (3) failed to post a notice
or otherwise warn of the slippery condition of the
steps.2 The defendants denied the allegations in the
complaint and asserted a special defense alleging that
the plaintiff’s injuries resulted from ‘‘her own negli-
gence and carelessness . . . .’’
A jury trial ensued in which Robert Cohen testified
about how he maintained the property during the win-
ter months. He testified that three or four individu-
als helped him with snow removal at the property.
Together, they would remove snow after a snowstorm
and spread salt and sand on the stairs. Robert Cohen
also testified that, after spreading salt and sand on the
stairs, no one would return in the winter to clear off
the stairs.
In light of that testimony, the plaintiff submitted a
proposed jury instruction regarding the defendants’
nondelegable duty to maintain the safety of the prem-
ises.3 The plaintiff also proposed that the trial court
submit three interrogatories to the jury. The proposed
interrogatories addressed three grounds on which the
jury could have determined liability: (1) Were the plain-
tiff’s fall and injuries caused by the defendants’ negli-
gence and carelessness in failing to maintain the steps
clean, clear and free of dirt and sand? (2) Were the
plaintiff’s fall and injuries caused by the defendants’
negligence in allowing the steps to become pitted, worn
and uneven? And (3) were the plaintiff’s fall and injuries
caused by her own failure to exercise care under the
circumstances and conditions then existing?
The trial consisted of two days of evidence. The trial
court began the second, and last, day of trial by asking
if the attorneys had any preliminary matters to discuss.
Because the court would instruct the jury and submit
the case to it for deliberation after the conclusion of evi-
dence later that day, the plaintiff’s attorney responded:
‘‘Just the fact that I had filed jury instructions—pro-
posed jury instructions and jury interrogatories, and
my understanding is, the court is going to disallow
those.’’ The court replied by confirming the plaintiff’s
understanding and explaining: ‘‘I don’t think the inter-
rogatories are necessary, and I don’t think that the non-
delegable duty charge is necessary because I’m specifi-
cally charging the jury—or I intend to specifically . . .
charge the jury on the duties that are owed to an invi-
tee.’’ The plaintiff’s attorney answered: ‘‘Very well.
Thank [you].’’4
As it indicated it would, the trial court, after the close
of evidence, charged the jury on the applicable law.
That charge included an explanation of the duty owed
to an invitee but not an explanation of the nondelegable
duty doctrine. Following the instructions, the trial court
asked the attorneys if there were any exceptions to the
charge. The plaintiff’s counsel answered: ‘‘Other than
what I had filed previously, no, Your Honor.’’ The jury
proceeded to deliberate. During deliberations, the jury
submitted the following question to the court: ‘‘How do
we indicate on the [verdict] form that we find neither
party negligent?’’ The court instructed the jury that if
it had found neither party negligent, it would have to
return a defendants’ verdict. The jury then returned a
defendants’ verdict.5
After trial, the plaintiff filed motions to set aside the
verdict and for a new trial. The trial court denied both
motions. The plaintiff then appealed to the Appellate
Court, claiming that the trial court had improperly
rejected her request to charge and improperly failed
to instruct the jury on the defendants’ nondelegable
duty to maintain the premises. Garcia v. Cohen, supra,
188 Conn. App. 381. During oral argument, the Appellate
Court asked the parties whether the general verdict
rule applied and later permitted the parties to submit
supplemental briefs on the issue. Id., 384. Having raised
the issue sua sponte, the Appellate Court concluded
that the general verdict rule indeed applied, reasoning
that, although the plaintiff had requested that the trial
court submit her proposed interrogatories to the jury,
she failed to object when the trial court denied the
request. Id., 386. Additionally, the Appellate Court con-
cluded that the plaintiff had not specifically claimed on
appeal that the trial court improperly failed to submit
her interrogatories to the jury. Id., 386–87. Accordingly,
the Appellate Court deemed the instructional error not
reviewable. Id., 387.
The plaintiff then petitioned this court for certifica-
tion to appeal, which we granted on two issues: (1)
whether the Appellate Court properly held that the gen-
eral verdict rule applies when a plaintiff’s proposed jury
interrogatories are rejected by the trial court and the
plaintiff thereafter does not object when the case is
submitted to the jury without jury interrogatories; and
(2) whether the Appellate Court correctly concluded
that the plaintiff did not claim on appeal that the trial
court improperly failed to submit her interrogatories
to the jury. Garcia v. Cohen, 331 Conn. 921, 205 A.3d
567 (2019).
I
The plaintiff claims that the general verdict rule
should not apply because she submitted properly
framed interrogatories to the court and that, even
though her counsel did not use the talismanic words,
‘‘I object,’’ she plainly conveyed her objection to the
court’s denial of her request on the record, which the
court understood. She also claims that, as a predicate
to review of her instructional claim, she was not
required to assert an independent claim of error on the
basis of the trial court’s refusal to submit her proposed
interrogatories to the jury. Her reliance on the trial
court’s denial of properly framed interrogatories, she
argues, amounts to a defense against application of the
general verdict rule. We agree with the plaintiff.
The plaintiff’s challenges to both of the Appellate
Court’s conclusions—that the general verdict rule
applies and that a failure to raise an independent claim
of error on the basis of a refusal to submit jury interroga-
tories precludes review of the plaintiff’s jury charge
claim—present questions of law over which our review
is plenary. MacDermid, Inc. v. Leonetti, 328 Conn. 726,
738–39, 183 A.3d 611 (2018).
‘‘Under the general verdict rule, if a jury renders a
general verdict for one party, and [the party raising a
claim of error on appeal did not request] interrogatories,
an appellate court will presume that the jury found
every issue in favor of the prevailing party. . . . Thus,
in a case in which the general verdict rule operates, if
any ground for the verdict is proper, the verdict must
stand; only if every ground is improper does the verdict
fall. . . . The rule rests on the policy of the conserva-
tion of judicial resources, at both the appellate and trial
levels. . . .
‘‘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 appellant 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. . . .
‘‘In the trial court, the rule relieves the judicial system
from the necessity of affording a second trial if the
result of the first trial potentially did not depend upon
the trial errors claimed by the appellant. Thus, unless
an appellant can provide a record to indicate that the
result the appellant wishes to reverse derives from the
trial errors claimed, rather than from the other, indepen-
dent issues at trial, there is no reason to spend the
judicial resources to provide a second trial.’’ (Internal
quotation marks omitted.) Tetreault v. Eslick, 271 Conn.
466, 471–72, 857 A.2d 888 (2004).
We have said 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 plead-
ing 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.’’ Curry v. Burns, 225 Conn. 782,
801, 626 A.2d 719 (1993).
The parties agree, and the Appellate Court concluded,
that the present case clearly falls within scenario num-
ber four: the defendants denied the negligence allega-
tion in the complaint and pleaded the special defense
of contributory negligence. See Garcia v. Cohen, supra,
188 Conn. App. 385. Therefore, the general verdict rule
would apply if the appellant has failed to provide a
record on which reversible error may be predicated.
Specifically, in the absence of interrogatories, the rule
would prevent review of the plaintiff’s claim of error
because an appellate court would be unable to deter-
mine whether the jury decided for the defendants on
the basis of the defendants’ denial of the complaint or
on their special defense. Thus, the verdict would have
to stand. Dowling v. Finley Associates, Inc., 248 Conn.
364, 375, 727 A.2d 1245 (1999).
However, parties can create a record to avoid appli-
cation of the general verdict rule by submitting inter-
rogatories to the jury that elicit the specific grounds
for the verdict. See, e.g., Pedersen v. Vahidy, 209 Conn.
510, 514, 552 A.2d 419 (1989). ‘‘It follows that where
the court has denied a proper request for interrogatories
. . . the general verdict rule does not apply so as to
preclude appellate review of error relating to any
ground upon which the jury may have rested its verdict
and to which an appropriate interrogatory has been
directed.’’ Id. The parties do not dispute that the plaintiff
proposed interrogatories to the trial court and that the
court declined to submit them to the jury. However,
the defendants maintain that the rule applies because
(1) the plaintiff failed to object when the court denied
her request for the submission of her interrogatories
to the jury, and (2) even if she had objected, she failed
to submit properly framed interrogatories.
A
The defendants contend that the general verdict rule
should apply because the plaintiff failed to object when
the trial court declined to submit her interrogatories to
the jury. The plaintiff responds that she preserved her
objection because she conveyed her position to the trial
court, which, in turn, acknowledged her position. We
agree with the plaintiff.
The defendants rely on Malaguit v. Ski Sundown,
Inc., 136 Conn. App. 381, 44 A.3d 901, cert. denied, 307
Conn. 902, 53 A.3d 218 (2012), for the proposition that
‘‘the failure of the [plaintiff] to object to jury delibera-
tion without interrogatories is the functional equivalent
of a failure to request interrogatories.’’ (Internal quota-
tion marks omitted.) Id., 387. Malaguit quoted another
Appellate Court decision, Gajewski v. Pavelo, 32 Conn.
App. 373, 381, 629 A.2d 465 (1993), rev’d, 229 Conn. 829,
643 A.2d 1276 (1994), from which this language appar-
ently originated. Gajewski is distinguishable because,
in that case, not only did the parties fail to submit pro-
posed interrogatories to the trial court, but the parties
did not object to the jury’s deliberating without any
interrogatories whatsoever. See Gajewski v. Pavelo, 229
Conn. 829, 834, 643 A.2d 1276 (1994) (parties had not
completed preparing interrogatories and did not object
to court’s allowing jury to deliberate without them);
see also Malaguit v. Ski Sundown, Inc., supra, 387
(‘‘[t]he plaintiff did not object to the court’s decision
not to submit interrogatories to the jury’’).
We are unpersuaded by the defendants’ reliance on
Gajewski because that scenario differs wholly from
the scenario in the present case, in which a party
has proposed jury interrogatories but the trial court
has declined to submit them to the jury. Nor does foot-
note 4 in Tetreault v. Eslick, supra, 271 Conn. 466,
which the parties did not cite, preclude our review.
In Tetreault, the defendants filed interrogatories and
requested that they be submitted to the jury, but it
was the plaintiffs who claimed instructional errors on
appeal and sought to avoid application of the general
verdict rule. Id., 470. During the trial and on the record,
the court acknowledged the defendants’ request for
interrogatories (the subject of an off-the-record confer-
ence in chambers) and asked the plaintiffs’ counsel
whether he had any feeling one way or the other about
the submission of interrogatories. Id., 470 n.4. The plain-
tiffs’ counsel responded: ‘‘Well, I thought Your Honor
had already decided—made up your mind on that.’’
(Internal quotation marks omitted.) Id. The plaintiffs
did not advocate for the interrogatories to be submitted
to the jury and failed to object to the court’s decision
not to submit them. Id. The distinction of which party
submits interrogatories matters because it is an appel-
lant’s responsibility to provide a record on which revers-
ible error can be predicated; Curry v. Burns, supra, 225
Conn. 790; and the party seeking to avoid application
of the general verdict rule also is responsible for making
‘‘every reasonable effort to protect himself from the
consequences of such a verdict by seeking to use inter-
rogatories.’’ Pedersen v. Vahidy, supra, 209 Conn. 517.
In Tetreault, the plaintiffs’ failure to file their own inter-
rogatories, their failure to make a record in support
of the opposing parties’ proposed interrogatories, and
their failure to object to the court’s decision not to
submit them did not amount to making every reasonable
effort to prevent the application of the general ver-
dict rule.
In the present case, the plaintiff filed proposed inter-
rogatories, addressed the court’s denial of their submis-
sion to the jury on the record, and renewed her objec-
tion following the jury charge. The plaintiff raised the
issue of the court’s denial of the interrogatories on the
record after an apparent off-the-record discussion. This
spurred the court to state on the record the justifica-
tions for its denial. Specifically, the court asked if the
attorneys had any matters to discuss. The plaintiff’s
attorney responded: ‘‘Just the fact that I had filed jury
instructions—proposed jury instructions and jury inter-
rogatories, and my understanding is, the court is going
to disallow those.’’ The court replied: ‘‘I don’t think the
interrogatories are necessary . . . .’’ Although the
plaintiff did not use the precise language, ‘‘I object,’’
she alerted the court to her claim of error, and the court
explained its reasoning while there was still an oppor-
tunity for correction. See State v. Sandoval, 263 Conn.
524, 556, 821 A.2d 247 (2003) (‘‘purpose of requiring
trial counsel to object properly is not merely formal:
it serves to alert the trial court to purported error while
there is time to correct it’’ (internal quotation marks
omitted)).
Additionally, the plaintiff in the present case renewed
her objection to the court’s denial of her request to sub-
mit her proposed interrogatories to the jury after the
court had charged the jury on the applicable law. At that
time, the court inquired if the parties had any exceptions
to the charge. The plaintiff responded, ‘‘Other than what
I had filed previously, no, Your Honor.’’6 The record
establishes that the plaintiff functionally raised the
issue by putting opposing counsel and the trial court
on notice of her objection to the court’s refusal to sub-
mit her interrogatories to the jury. See Fadner v. Com-
missioner of Revenue Services, 281 Conn. 719, 729 n.12,
917 A.2d 540 (2007) (addressing issue ‘‘functionally’’
raised by party in trial court proceedings). We conclude
that the plaintiff, who was responsible for creating the
record, made every reasonable effort to avoid the appli-
cation of the general verdict rule by filing interrogato-
ries, eliciting the court’s justification on the record for
its decision not to submit them to the jury, and renew-
ing an objection to the court’s denial while there was
still an opportunity for correction. The general verdict
rule does not apply to preclude review of her instruc-
tional error claim on the basis of her failure to object
to the court’s decision not to submit the interrogatories
to the jury.
B
The defendants contend next that the interrogator-
ies were not properly framed because they (1) failed
to address each specification of their special defense,
and (2) would not have shed light on the verdict and
could not have provided the jury with an untainted
route by which it could have found the defendants not
liable. We agree with the defendants that it is not the
mere submission of interrogatories that enables a
reviewing court to determine the grounds for the jury’s
decision. See, e.g., Sutera v. Natiello, 189 Conn. App.
631, 639, 208 A.3d 1241, cert. denied, 332 Conn. 908, 209
A.3d 644 (2019); see id., 636 n.4 (general verdict rule
applied because interrogatories merely mirrored ver-
dict form and failed to disclose grounds for jury’s deci-
sion); Fabrizio v. Glaser, 38 Conn. App. 458, 465, 661
A.2d 126 (1995) (general verdict rule applied because
interrogatories related solely to defendant’s special
defense, did not address plaintiff’s medical malpractice
claim, and, therefore, did not reveal whether jury found
for or against plaintiff on that claim), aff’d, 237 Conn.
25, 675 A.2d 844 (1996). Rather, avoiding the general
verdict rule requires the submission of properly framed
interrogatories that, if used, would have clarified the
basis for the jury’s verdict. See Perez v. Cumba, 138
Conn. App. 351, 365, 51 A.3d 1156 (general verdict rule
did not apply because, had trial court submitted pro-
posed interrogatories to jury, grounds for verdict would
have been ascertainable), cert. denied, 307 Conn. 935,
56 A.3d 712 (2012). The Appellate Court in the present
case set forth the requirement that the interrogatories
must be properly framed, but it was not on that ground
that it declined to reach the plaintiff’s claim of instruc-
tional error. See Garcia v. Cohen, supra, 188 Conn. App.
386–87 (concluding that general verdict rule applied
because plaintiff failed to object to trial court’s decision
not to submit proposed interrogatories to jury and that
instructional error claim was not reviewable because
plaintiff failed to raise independent claim on appeal
challenging court’s decision as to her interrogatories).
On appeal to this court, the defendants assert two theo-
ries as to why the plaintiff failed to submit properly
framed interrogatories.
1
First, the defendants assert that the plaintiff’s pro-
posed interrogatories were not properly framed
because they did not address all of the specifications
of the defendants’ special defense. The proposed inter-
rogatories only asked whether the plaintiff failed to
‘‘exercise that degree of care that an ordinary person
would have exercised while using the premises under
the circumstances and conditions then existing . . . .’’
In the defendants’ view, the interrogatories were not
properly framed because they addressed only whether
the plaintiff exercised reasonable care and failed to
address the other three specifications of their special
defense: whether the plaintiff failed to watch where she
stepped, failed to step over a dangerous condition, and
failed to be attentive. Under our governing precedent,
we disagree with the defendants that the interrogatories
needed to address all four specifications separately.
To determine whether the general verdict rule man-
dates submission of interrogatories that address each
specification or factual allegation in support of a special
defense, we look to our seminal case on the rule, Curry
v. Burns, supra, 225 Conn. 801. In Curry, we discussed
the development of the general verdict rule in order to
clarify the rule and to establish limits for its application.
In doing so, we overruled our previous case law that
had expanded application of the rule. See id., 792 (over-
ruling Finley v. Aetna Life & Casualty Co., 202 Conn.
190, 520 A.2d 208 (1987), because ‘‘Finley extended the
reach of the general verdict rule beyond appropriate
bounds . . . to the extent that [it] applied the rule to
the denial of elements of a single cause of action’’). We
explained that limiting application of the general verdict
rule would provide a ‘‘substantial degree of certainty
as to when it applies and when it does not. Otherwise,
trial counsel, in the hurry of the trial, may be forced to
err on the side of prudence by requesting interrogatories
whenever there are factually distinct issues that have
been litigated, even though those issues stem solely
from denials of different factual allegations of the com-
plaint.’’ Curry v. Burns, supra, 800.
Specifically, we held that the rule did not apply in
Curry because the circumstances fell squarely outside
any of the five enumerated scenarios in which the
general verdict rule applies. Id., 801. In Curry, the plain-
tiff had alleged a violation of the defective highway
statute, General Statutes § 13-144, and the defendant
answered by denying liability and claiming that the
plaintiff had failed to comply with the statute’s notice
requirement. Id., 785. We concluded that the rule did
not apply because the defendant’s denials—of liability
and compliance by the plaintiff with the notice require-
ment—did not respond to separate causes of action or
create separate defenses. Id., 801. Rather, the denials
constituted denials of separate factual allegations in
support of one denial of one cause of action. Id. By
contrast, when the denials respond to separate causes
of action or create one or more special defenses, the
rule does apply because the reviewing court would be
unable to determine whether the plaintiffs failed to
prove their case, the defendants succeeded in proving
their special defense, or both. See Dowling v. Finley
Associates, Inc., supra, 248 Conn. 374–75; see id., 370,
372, 379 (enumerating five scenarios in which general
verdict rule applies and concluding that rule applied
based on defendant’s denial of complaint and assertion
of three special defenses in prior action between same
parties).
In the present case, the defendants’ theory would
have us cast their four specifications of contributory
negligence as four separate defenses requiring four
separate interrogatories to determine upon which spe-
cial defense the jury could have reached its verdict.
That assertion directly conflicts with our holding and
rationale in Curry. One of the plaintiff’s proposed inter-
rogatories would have asked the jury to determine
whether the plaintiff had exercised a reasonable degree
of care under the existing circumstances and conditions
on the stairs. The interrogatory encompassed the four
factual allegations that could have resulted in a jury
finding that the plaintiff’s negligence contributed to
her injuries—the single special defense raised. Under
Curry, that is enough. We decline to adopt the defen-
dants’ view, which would have required the plaintiff
to pose four separate interrogatories on contributory
negligence alone, a requirement that would serve only
to confuse the jury and to render the ‘‘already difficult
task of trial management, by court and counsel, unnec-
essarily burdensome.’’ Curry v. Burns, supra, 225
Conn. 801.
2
Beyond the reasons why the Appellate Court declined
to address the plaintiff’s claim of instructional error,
the defendants also claim that the plaintiff’s proposed
jury interrogatories were not properly framed because,
even if they had been submitted, they would not have
shed light on the verdict, and, ultimately, the jury had
an untainted route by which to reach its verdict. We
do not agree. The interrogatories would have shed light
on the verdict, and there was no untainted route to
reach the verdict because the ‘‘jury’s consideration of
all the bases that theoretically could support its general
verdict is intertwined’’ with the instructional error claim
on appeal. Beckenstein Enterprises-Prestige Park, LLC
v. Keller, 115 Conn. App. 680, 687, 974 A.2d 764, cert.
denied, 293 Conn. 916, 979 A.2d 488 (2009).
In reaching our conclusion, we look to cases that
lie directly at the intersection of a claim of instructional
error and application of the general verdict rule. In
MacDermid, Inc. v. Leonetti, supra, 328 Conn. 750,
we stated that ‘‘the general verdict rule precludes an
appeal claiming instructional error when the jury could
have decided the case on a ground not implicated by
the challenged instruction.’’ In MacDermid, Inc., ‘‘[t]he
plaintiff’s unjust enrichment claim not only relied on
the defendant’s intentions not to release his workers’
compensation claim and to do all that was necessary
to carry that into effect, but also on other misrepre-
sentations contained in the [parties’ employment termi-
nation] agreement [that the defendant would release
his claim], such as the statements indicating the defen-
dant believed that he had sufficient time to review the
agreement and that $70,228.51 was more than he was
entitled to receive.’’ Id., 751–52. Thus, the plaintiff pre-
sented separate legal theories of unjust enrichment in
one count, implicating Curry’s scenario number three,
under which the general verdict rule applies. Id., 751.
On appeal, the defendant argued that the trial court
improperly instructed the jury on unjust enrichment.
Id. We concluded that the general verdict rule precluded
review of the defendant’s instructional error claim
because the ‘‘defendant [had] not request[ed] jury inter-
rogatories that would [have] properly establish[ed] the
ground on which the jury made its decision . . . .’’ Id.,
752. The interrogatories that the defendant requested
failed to address the separate legal theories of unjust
enrichment under which the jury could have reached
its verdict.
In other cases, the general verdict rule has not pre-
cluded review of an instructional error claim. For exam-
ple, in both Beckenstein Enterprises-Prestige Park,
LLC v. Keller, supra, 115 Conn. App. 680, and Perez v.
Cumba, supra, 138 Conn. App. 351, the Appellate Court
did not apply the general verdict rule. In Beckenstein
Enterprises-Prestige Park, LLC, supra, 684, 686, the
defendants denied the allegations of each of the three
counts in the plaintiffs’ complaint that were submitted
to the jury and asserted nine special defenses. On appeal
from the judgment in favor of the defendants, the plain-
tiffs argued that the trial court improperly charged the
jury that the statute of limitations narrowed the plain-
tiffs’ actionable claims. Id., 683. The Appellate Court
concluded that the general verdict rule did not preclude
review of the instructional claim because the statute
of limitations instruction would have impacted not only
the jury’s consideration of the defendants’ actions as a
basis for liability but also would have undermined the
jury’s consideration of the defendants’ other special
defenses because it limited the time frame that the jury
could consider in its determination of those defenses.
Id., 686–87. ‘‘Because the jury’s consideration of all the
bases that theoretically could [have] support[ed] its
general verdict [was] intertwined with the statute of
limitations instruction, the general verdict rule [did] not
bar our review of the plaintiffs’ claim that attack[ed]
this instruction.’’ (Emphasis added.) Id., 687.
In Perez, ‘‘the defendant denied the plaintiff’s allega-
tions of negligence and raised the special defense of
superseding cause . . . .’’ Perez v. Cumba, supra, 138
Conn. App. 362. During trial, the court declined to sub-
mit to the jury interrogatories that the plaintiff had
proposed. Id., 360, 365. Those interrogatories addressed
whether the defendant had failed to use reasonable care
to protect her invitees (negligence) and, if the defendant
was negligent, whether the harm to the decedent was
within or outside the scope of the risk created by the
defendant’s negligence (superseding cause). Id., 364–65.
On appeal after a defendant’s verdict, the plaintiff
argued that the court’s defective premises instruction
requiring notice was unwarranted and contrary to prec-
edent. Id., 365–66. The Appellate Court concluded that
the general verdict rule did not preclude review of the
instructional claim because ‘‘the plaintiff [had] pre-
sented interrogatories intended to properly frame the
issue of superseding cause, thereby fleshing out the
grounds for the jury’s verdict . . . .’’ Id., 365. Specifi-
cally, had the trial court submitted the interrogatories,
it would have been clear whether the jury found in favor
of the defendant on the basis of her special defense or
the plaintiff’s failure to prove that the defendant was
negligent. Because the plaintiff had ‘‘made every reason-
able effort to protect’’ herself from the general verdict
rule, the trial court’s failure to submit the interrogatory
should not have precluded review of the plaintiff’s
claim. See, e.g., Pedersen v. Vahidy, supra, 209 Conn.
517.
We find the facts of the present case more in line
with Beckenstein Enterprises-Prestige Park, LLC, and
Perez. The plaintiff pleaded a single cause of action
(negligence). The defendants denied the plaintiff’s sin-
gle cause of action and asserted a single special defense
(contributory negligence). During trial, Robert Cohen
testified that he hired individuals to remove snow from
the plaintiff’s steps and spread salt and sand on them.
On the basis of that testimony, the plaintiff requested
that the trial court instruct the jury that the defendants
had a nondelegable duty to the plaintiff—the responsi-
bility to maintain the plaintiff’s steps in a safe condition
such that the defendants could not avoid liability by
hiring others to remove snow and spread salt and sand.
The trial court declined to instruct the jury on the non-
delegable duty doctrine. It is this ruling the plaintiff
wanted the Appellate Court to review.
The jury’s consideration of the plaintiff’s allegation
of negligence and the defendants’ assertion of contribu-
tory negligence is intertwined with the plaintiff’s claim
on appeal that the trial court improperly declined to
give a nondelegable duty charge. On the basis of Robert
Cohen’s testimony that he hired workers for snow
removal and sanding, it is possible that the jury could
have concluded that the snow removal team, rather than
the defendants, acted negligently, and for that reason
found that the defendants had not acted negligently or
had acted less negligently than the plaintiff. The plaintiff
argued before the Appellate Court that the jury did not
have the benefit of being instructed by the trial court
that, under the nondelegable duty doctrine, the defen-
dants were liable for any negligence attributed to the
snow removal team. See, e.g., Smith v. Greenwich, 278
Conn. 428, 460, 899 A.2d 563 (2006); see also footnote
3 of this opinion. Although the trial court instructed
the jury on the duties that the defendants owed to the
plaintiff as a tenant-invitee, the invitee instruction itself
(the defendant has a duty to maintain and a duty to
warn) is distinct from the nondelegable duty instruction
(the defendant cannot avoid liability by hiring others
to maintain the premises).7 If the jury found that the
snow removal crew had been negligent, that negligence
under the nondelegable duty doctrine would have
resulted in some allocation of liability to the defendants.
The jury’s estimation and allocation of negligence are
intertwined with the nondelegable duty instruction, and
the jury had no untainted route to the verdict.
Additionally, the interrogatories would have shed
light on the verdict. The interrogatories would have
elicited three responses from the jury—whether the
defendant was negligent in maintaining the steps by
keeping them clean and clear, whether the defendants
were negligent in repairing the steps, and whether the
plaintiff herself was negligent. The interrogatories
could have eliminated any negligence attributable to
the plaintiff and fleshed out whether and on what
grounds the jury attributed any negligence to the defen-
dants. The interrogatories separated out any negligence
attributable to the defendants into two questions—
whether the fall and injury resulted from the defendants’
negligence in failing to clear dirt and sand from the
steps, and whether the fall and injury resulted from the
defendants’ negligence in allowing the steps to become
worn and uneven. The interrogatories simply cannot
be cast, as the defendants argue, as not properly framing
the bases on which the jury reached its verdict. They
addressed head on the single allegation in the complaint
and the special defense asserted by the defendants.
The interrogatories did not need to address the various
factual specifications supporting the special defense
because the specifications did not create more than
one separate defense. See Curry v. Burns, supra, 225
Conn. 801. Because the interrogatories would have shed
light on the jury’s bases for its verdict, and because the
instructional claim of error on appeal is intertwined
with both the cause of action and the special defense,
the general verdict rule does not preclude review of the
plaintiff’s claim of instructional error. This conclusion
is consistent with the general principles we set forth
in Curry of balancing the often competing interests of
providing an adequate record for review and easing the
burden on courts and counsel by applying the rule only
to clearly established scenarios. See id.
The defendants again rely on Malaguit, which they
assert is directly on point. Malaguit is easily distinguish-
able. In Malaguit, the plaintiff brought a negligence
claim against the owner and operator of a ski area,
alleging that the defendant created a hazard not inher-
ent in the sport of skiing by building and maintaining
a snow jump. Malaguit v. Ski Sundown, Inc., supra, 136
Conn. App. 383. The defendant denied the negligence
allegation in its answer and asserted two special
defenses: (1) General Statutes § 29-212 (skier’s assump-
tion of risk statute) completely barred any recovery,
and (2) the plaintiff’s own negligence caused his dam-
ages. Id. During trial, the plaintiff objected to the court’s
proposed jury instruction on § 29-212, but the court
rejected the plaintiff’s argument and gave the instruc-
tion. Id., 384. The plaintiff also proposed jury interroga-
tories but did not object when the court declined to
submit them to the jury. Id., 386–87. The jury returned
a verdict in favor of the defendant. Id., 385.
On appeal, the plaintiff in Malaguit claimed that the
trial court improperly (1) charged the jury on § 29-212,
(2) declined to provide the jury with the legislative
history of § 29-212, (3) failed to deliver an evidence
spoliation instruction, and (4) declined to instruct the
jury that exculpatory language in documents the defen-
dant had provided to the plaintiff should be disregarded.
Id., 382–83. In response, the defendant asserted that the
general verdict rule prohibited review of the plaintiff’s
claims. Id., 383.
The Appellate Court in Malaguit agreed with the
defendant that the general verdict rule applied in part
because ‘‘none of the plaintiff’s claims on appeal
raise[d] the possibility of an error that would [have]
relate[d] to all of the possible grounds on which the
jury’s verdict might [have] [been] based’’—the jury
therefore had an untainted route by which to reach
its verdict. Id., 389. Specifically, the plaintiff’s claims
on appeal that the trial court improperly instructed the
jury on § 29-212 and improperly declined to provide
the legislative history of the statute ‘‘relate[d] only to
the defendant’s special defense’’ under § 29-212. Id. The
claim of error did not relate to the contributory neg-
ligence special defense or the denial of the negligence
cause of action, which were both grounds that provided
the jury with an untainted route to reach its verdict. Id.
In the present case, the jury had before it one cause
of action and one special defense. Its task was to deter-
mine whether the negligent actions of the defendants
or the plaintiff resulted in the plaintiff’s injuries. Robert
Cohen’s testimony regarding the snow team’s respon-
sibility to clear and sand the plaintiff’s steps implicated
possible negligence on the part of that third party and
was ‘‘intertwined’’ with the question of the defendants’
liability for negligence. The fact that a third party’s neg-
ligent actions could have contributed to the plaintiff’s
fall relates to the degree of negligence the jury might
have attributed to the defendants. The negligence deter-
minations may have been different if the juryhad been
instructed that any negligence by the snow removal
team should have been attributed to the defendants, a
difference that could have tipped the balance in the
defendants’ favor. Therefore, unlike in Malaguit, the
plaintiff’s instructional claim of error on appeal relates
to both the denial of the cause of action and the spe-
cial defense—the interrogatories were properly framed
because they would have left the jury with no untainted
route to the verdict.
II
Finally, the plaintiff argues that the Appellate Court
incorrectly concluded that her instructional claim was
not reviewable because she failed to raise an indepen-
dent claim of error on appeal regarding the rejected
interrogatories. We agree.
The plaintiff’s claim of instructional error in the
Appellate Court maintained that the trial court improp-
erly had rejected her request to charge the jury on the
defendants’ nondelegable duty to maintain the premises.
Garcia v. Cohen, supra, 188 Conn. App. 381–82. She did
not independently claim that the trial court improperly
denied her request to submit her proposed interroga-
tories to the jury. During oral argument before the Appel-
late Court, the panel ‘‘asked [if] the appeal was control-
led by the general verdict rule and invited counsel to
submit supplemental briefs on the question.’’ Id., 384.
In her brief, the plaintiff argued that the general verdict
rule should not apply because she had filed jury inter-
rogatories designed to avoid the application of the rule.
The defendants argue before this court that the plaintiff
should have raised as an independent claim of error—
but did not—that the trial court improperly rejected the
plaintiff’s request to submit interrogatories to the jury
and that that failure should prevent review of the plain-
tiff’s instructional claim. We disagree in accordance with
our reasoning in Pedersen v. Vahidy, supra, 209 Conn.
517.
In Pedersen, the defendant filed a motion to set aside
the verdict that included an instructional error claim but
‘‘did not mention the refusal to submit his interrogato-
ries.’’ Id., 517. The trial court denied the motion to set
aside the verdict, and the defendant appealed, claiming
that the trial court had improperly instructed the jury and
failed to grant a mistrial or to give a curative instruction
as to certain remarks by the plaintiff’s counsel during
argument. Id., 511–12. In the appeal, the defendant ‘‘[did]
not claim [the] erroneous [refusal to submit interrogato-
ries] as an independent ground for seeking a new trial
but as a reason for not applying the general verdict rule
to bar review of the charge upon informed consent.’’ Id.,
517. We determined that the defendant had no reason to
anticipate that the general verdict rule would be invoked
to prevent review of his claim of error, given that he had
‘‘made every reasonable effort to protect himself from
the consequences of such a verdict by seeking to use
interrogatories.’’ Id. We concluded that his failure to
make an independent claim of error on the basis of the
rejection of the interrogatories ‘‘[did] not bar [him] from
plenary review of his claimed error.’’ Id.
The same reasoning applies to the present case
because the plaintiff plainly alerted the trial court to her
position, including in her motion to set aside the verdict
(as the plaintiff in Pedersen did not). Here, the plaintiff
filed interrogatories, addressed the court’s decision not
to submit them to the jury on the record, and raised her
objection again after the court had charged the jury on
the applicable law. She made every reasonable effort to
protect herself from the consequences of a general ver-
dict. Until the Appellate Court raised the issue of the gen-
eral verdict rule at oral argument, the plaintiff had no
reason to anticipate that the rule would prevent review
of her instructional error claim. Her failure to assign an
independent claim of error to the trial court’s refusal to
submit interrogatories does not, in our view, preclude
review of her instructional claim, which she clearly did
preserve. Accordingly, the Appellate Court incorrectly
concluded that the plaintiff’s instructional error claim
was not reviewable.8
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to con-
sider the plaintiff’s claim of instructional error.
In this opinion the other justices concurred.
1
We refer to the Cohens collectively as the defendants and name them indi-
vidually as necessary.
2
The complaint contained two additional counts, including a violation of
the municipal housing code and a violation of the state housing code under
General Statutes § 47a-7. The plaintiff later withdrew those counts, and the
jury heard evidence and issued a verdict only on the premises liability claim.
3
The plaintiff’s proposed instruction by and large drew from the Connecti-
cut Civil Jury Instructions, § 3.9-14A, on the nondelegable duty to invitees and
cited Supreme Court and Appellate Court cases as authority. The plaintiff’s
proposed jury instruction provided: ‘‘The 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,
Ussbasy Garcia, 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 defen-
dant 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.’’ See, e.g., Smith v. Greenwich, 278 Conn. 428,
460, 899 A.2d 563 (2006) (‘‘the party in control of a premises . . . has . . . a
nondelegable duty to maintain the safety of those premises’’).
4
This exchange suggests that the court and the parties had discussed the
proposed instructions and the court’s charge earlier, perhaps at a charge
conference in chambers or otherwise off the record. We do not suggest that
this practice is inappropriate—especially at a time when the Judicial Branch
suffers from shortages in courtroom staff. The practice has its perils, how-
ever, if it leaves a reviewing court without a clear record. Even though we
ultimately conclude that the record is sufficient for review, the cryptic back
and forth between the parties and the court once they were back on the
record illustrates how important it is that the parties and the court are
explicit about the areas over which there is disagreement. It is the responsi-
bility of the parties and the court to ensure that a proper record has been
made of both the parties’ requests to charge and the court’s rulings on
those requests.
5
The verdict form the jury foreman endorsed provides: ‘‘The jury finds
the issues for the defendants, Robert and Diane Cohen.’’
6
Even after the trial, the plaintiff raised the issue of the court’s decision
not to submit her interrogatories to the jury in her motion to set aside the
verdict, in a brief in support of her motion for a new trial, and in a motion
for articulation. In all three, the plaintiff asserted her claim that the trial
court improperly had failed to submit the proposed interrogatories to the
jury. The defendants filed a brief in support of their objection to the plaintiff’s
motion for a new trial in which they argued that the interrogatories were
redundant and would have confused the jury. They did not claim that the
plaintiff failed to preserve her objection to the court’s denial of the request
for interrogatories. The trial court denied the motion for a new trial by simply
adopting the legal basis and factual analysis contained in the defendants’
memorandum of law—that the interrogatories were redundant and confus-
ing, not on the ground that the plaintiff had failed to preserve her objection.
7
The trial court instructed the jury on the duties the defendants owed
the plaintiff as an invitee. Those duties included (1) the duty to use reason-
able care to inspect and maintain the premises and to make the premises
reasonably safe, (2) the duty to warn or guard the invitee from being injured
by reason of any defects that the invitee could not reasonably expect to
discover, and (3) the duty to conduct activities on the premises in such a
way as to not injure the invitee.
8
The issue of whether the trial court properly denied her request to charge
the jury on the issue of nondelegable duty is not before this court. We did
not certify the issue, and, thus, the parties have not briefed it. The Appellate
Court will address that claim of error on remand.