Garcia v. Cohen

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GARCIA v. COHEN—DISSENT
LAVINE, J., dissenting. Because I believe a nondelega-
ble duty charge was not required and indeed unwar-
ranted, I agree with the trial court that the facts did
not support the giving of such a charge and that to have
given it simply would have confused the jury. Moreover,
the plaintiff has failed to carry her burden of showing
that the failure to give the requested charge affected
the verdict. Therefore, for the following reasons, I
respectfully dissent.
I agree with the facts as recited in the majority
opinion.
Preliminarily, it should be noted that the purpose of
a nondelegable duty charge is to prevent a defendant
from arguing that she should be freed from liability
because she had transferred to a third party the job of
maintaining her premises in a safe condition. See, e.g.,
Smith v. Greenwich, 278 Conn. 428, 456–458, 899 A.2d
563 (2006). In other words, in simple English, it is to
prevent a landowner from saying: ‘‘It’s not my fault
because Joe Doakes was supposed to do it.’’ But, in
the present case, the defendant landowner is in effect
saying: ‘‘Don’t blame Joe Doakes. Blame me. I’m the
one who is fully responsible for the problem.’’
The majority states that, ‘‘[d]uring trial, Robert Cohen
testified that he hired individuals to assist him in remov-
ing snow from the plaintiff’s steps and in spreading
salt and sand on them. On its face, that testimony
implicates the nondelegable duty doctrine because
Robert Cohen testified that there were individuals per-
forming maintenance work on the rear exterior stair-
case. Thus, he raised the issue, by implication, of
whether he or others may have been responsible for
the claimed defect. It is well fixed in our decisional
law, however, that the defendants cannot shift legal
responsibility to others when someone is injured due
to the condition of property owned and controlled by
the defendants.’’ (Emphasis added.)
I disagree with the italicized portion of this assertion.
In effect, the majority is asserting that a nondelegable
duty charge must be given whenever a landowner hires
individuals to maintain his property. Moreover, the
unstated but erroneous premise of the majority’s argu-
ment is that Robert Cohen may have been seeking to
avoid legal responsibility by pointing the finger at a
third party. The nondelegable duty doctrine stands for
the proposition that an employer ‘‘may contract out the
performance of [its] nondelegable duty, but may not
contract out [its] ultimate legal responsibility.’’ (Empha-
sis in original.) Gazo v. Stamford, 255 Conn. 245, 255,
765 A.2d 505 (2001). But, as noted, this case falls outside
the purview of the nondelegable duty doctrine because,
as the trial court pointed out in its response to the
motion for articulation: ‘‘There was no evidence or argu-
ment that anyone other than the defendant was respon-
sible for the maintenance of the stairway.’’ At no time
did Robert Cohen attempt to dodge or to deny responsi-
bility for the condition of the stairway on which the
plaintiff fell. In fact, he, in effect, claimed responsibility,
as he testified in response to questioning on cross-
examination from his counsel1:
‘‘Q.: Thank you. As part of your process for taking
care of this back staircase at 390 West Main Street if
there was snow or ice, you would spread—or you or
your workers would spread salt and sand on the stairs?
‘‘A.: Yes, yes.
‘‘Q.: And isn’t it true, though, that after salt and sand
was spread on the stairs you would not go back or you
would not have your helpers go back and clear them off?
‘‘A.: Not in January because there was anticipation
of more snow and ice.
‘‘Q.: So the salt and sand would go on, presumably,
the snow and ice would melt, but neither you nor your
workers would go and clear off the sand from the stair-
case? Is that—
‘‘A.: Not in the—
‘‘Q.: —correct?
‘‘A.: —winter.
‘‘Q.: I’m sorry?
‘‘A.: Not in the winter.’’
Therefore, the plaintiff’s proposed jury instruction
that ‘‘[the defendant] cannot escape liability for any
such injury by claiming he had contracted with someone
else to maintain the premises in a reasonably safe condi-
tion,’’ was unwarranted and unsupported by the facts
of the case. Robert Cohen maintained control of the
stairs, and those who helped him merely followed his
instructions. The majority seems to be suggesting that
notwithstanding Robert Cohen’s decision-making
authority, the helpers should have, on their own initia-
tive and contrary to their employer’s wishes, remedied
the problem. I am unaware of any Connecticut case in
which the defendant did not point at a third party in
an effort to avoid legal responsibility, yet the failure
to give a nondelegable duty charge was found to be
reversible error.
Next, I agree with the trial court that to have given
the instruction in this case would have confused the
jury because the issue was neither presented nor argued
by the defendants. While, as a general proposition, a
trial court should give a requested charge if the law is
relevant to the issues before the jury and there is a
factual basis for it, the trial court must maintain some
reasonable degree of latitude based on pragmatic con-
siderations. A trial court has ‘‘wide discretion’’ in the
exercise of its jury charging function. Ladd v. Burdge,
132 Conn. 296, 298, 43 A.2d 752 (1945). The trial court,
having sat in the court and observed the proceedings,
counsels’ arguments, and the jurors’ reactions to the
testimony, and generally gauged the jurors’ understand-
ing of the legal concepts presented, must be given dis-
cretion in a case where the giving of a requested charge
might theoretically be permissible, but where, on bal-
ance, the trial court sees no need for it given the facts
of the case and because of its capacity to confuse the
jury. In other words, the fact that such a charge could
theoretically have been given does not mean it was
error to have failed to give it.2 In ambiguous situations
such as the present case, I believe the question to ask
is whether the court abused its discretion in failing to
give the nondelegable duty charge. In this case, I believe
the answer to this question is ‘‘no.’’
‘‘When reviewing [a] challenged jury instruction . . .
we must adhere to the well settled rule that a charge
to the jury is to 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 . . . 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.’’
(Internal quotation marks omitted.) Mahon v. B.V. Uni-
tron Mfg., Inc., 284 Conn. 645, 656, 935 A.2d 1004 (2007).
It must be remembered that the trial court in the present
case included in its charge a discussion of the legal
duty owed by a possessor of land to an invitee. Viewed
as a whole, I believe the charge was adequate.
Under the circumstances of the present case, in
which the defendants’ responsibility for the condition
of the stairs was unquestioned and Robert Cohen never
argued that his helpers were legally responsible, it is
hard to see why the requested charge was required,
particularly when the trial court thought it would con-
fuse the jury.
Finally, I do not agree with the majority that the
failure to give the requested charge was harmful. Exami-
nation of excerpts from counsel’s closing arguments
confirms that the plaintiff’s argument was directed
solely at Robert Cohen. In his closing arguments, the
plaintiff’s counsel placed the blame for the accident
squarely on Robert Cohen himself, and no one else.
For example, counsel argued: ‘‘The steps were never
swept. . . . In terms of responsibility for the accident,
I almost don’t have to say anything else. A storm would
come, he would have his men come and clean up the
ice and snow, put sand and salt on the steps, leave the
sand there.’’
Later, in his rebuttal closing argument, the plaintiff’s
counsel stated: ‘‘The bottom line is . . . negligence,
about neglecting to do something. He has his workers
to help him maintain these sixty units and he can’t be
bothered to come by, have some—pay someone to
come by and sweep the steps so that they’re safe, and
that’s why . . . she has these lifelong effects . . . .’’ I
disagree with the majority’s assertion that there was
harmful error that requires the jury’s verdict to be set
aside and the case remanded for a new trial. It must
be remembered that the jury sent the court a note asking
how to mark the jury form if it found ‘‘neither party
negligent.’’ I see nothing whatever in the record to sug-
gest that had a nondelegable duty charge been given,
the result would have been different. The burden to
prove the charge given by the court was harmful rests
squarely on the plaintiff; see Burke v. Mesniaeff, 334
Conn. 100, 119, 220 A.3d 777 (2019); and she has failed
entirely to carry that burden. Indeed, the majority has
failed to identify any evidence from the record in sup-
port of its assertion that the failure to give the requested
instruction ‘‘likely . . . affected the verdict.’’ (Internal
quotation marks omitted.) Schoonmaker v. Lawrence
Brunoli, Inc., 265 Conn. 210, 243, 828 A.2d 64 (2003).
The majority relies on language in our Supreme Court’s
decision remanding this case in support of its conclu-
sion that the failure to give the requested charge was
harmful. See Garcia v. Cohen, 335 Conn. 3, 225 A.3d
653 (2020). I respectfully suggest this supposition is not
sufficient. Under the particular facts and circumstances
of this case, I do not believe the trial court abused its
discretion by refusing to give the nondelegable duty
charge.
In sum, I believe the majority is applying the nondele-
gable duty doctrine under attenuated and unclear cir-
cumstances, in which it was not factually justified, in
which the trial court appropriately exercised its discre-
tion not to give it because it concluded that the charge
would unnecessarily confuse the jury, and in which the
failure to give it did not affect the verdict. This is not
a case in which the law clearly required that the charge
be given. It is a case in which whether or not to give
it was a matter upon which reasonable judges could
disagree. I would defer to the instincts of the judge in
the courtroom, who concluded first, that the charge
was not warranted under the facts, and second, that,
in any event, it would confuse the jury.
For the foregoing reasons, I respectfully dissent.
1
It should be noted that Robert Cohen did not mention that he hired
individuals to help him maintain his property until the plaintiff’s counsel
asked him on direct examination.
2
This case is factually distinguishable from Sola v. Wal-Mart Stores, Inc.,
152 Conn. App. 732, 100 A.3d 864, cert. denied, 314 Conn. 941, 103 A.3d 165(2014), in which this court concluded that the trial court had misconstrued
and misapplied the nondelegable duty doctrine. In Sola, ‘‘[p]rior to the start
of the trial, the court and the defendant had notice that one of the plaintiff’s
theories of recovery was that the nondelegable duty doctrine imposed liabil-
ity on the defendant for the negligence of its independent contractor.’’ Id.,
749. Moreover, the theory was stated in a motion in limine filed prior to
trial, and evidence was presented at trial that supported giving a nondelega-
ble duty charge. Id., 749–50.