Garcia v. Cohen

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USSBASY GARCIA v. ROBERT COHEN ET AL.
(AC 41079)
Lavine, Prescott and Bishop, Js.*
Syllabus
The plaintiff tenant sought to recover damages from the defendant landlords,
R and D, for personal injuries that she suffered when she slipped on
the rear exterior staircase of her apartment building. The plaintiff
claimed that the defendants were negligent in failing to keep the steps
of the staircase free from dirt and sand and by allowing the surface of
the steps to become pitted, worn and uneven. 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. After a jury trial, judgment was rendered
in favor of the defendants. The plaintiff appealed to this court, claiming
that the trial court improperly rejected her request to charge and failed
to instruct the jury that the possessor of real property has a nondelegable
duty to maintain the premises in a reasonably safe condition. This court
affirmed the trial court’s judgment, concluding that the general verdict
rule precluded the plaintiff’s claim on appeal. The plaintiff, on the grant-
ing of certification, appealed to our Supreme Court, which reversed this
court’s judgment and concluded that the general verdict rule did not
preclude the plaintiff’s claim on appeal, and remanded the case to this
court with direction to consider the plaintiff’s claim of instructional
error. Held:
1. The trial court erred by failing to instruct the jury on the nondelegable
duty doctrine; R’s testimony that he employed contractors to remove
snow and otherwise maintain the staircase implicated the nondelegable
duty doctrine because that testimony implicitly raised the issue of
whether he or the individuals who helped him remove snow was respon-
sible for the condition of the staircase, and the plaintiff’s proposed jury
charge was relevant to the issues in the case, an accurate statement of
the law and reasonably supported by the evidence adduced at trial.
2. The trial court’s instructions to the jury and its refusal to instruct the
jury on the defendants’ nondelegable duty to maintain the premises
constituted harmful error; the jury could have concluded that the snow
removal team acted negligently, but the court did not instruct the jury
that such a finding would have resulted in an allocation of liability to
the defendants under the nondelegable duty doctrine; accordingly, this
court concluded that there was a consequent likelihood of actual harm
to the plaintiff significant to warrant a new trial.
Submitted on briefs October 5, 2020—officially released April 20, 2021
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged negligence, and for other relief, brought
to the Superior Court in the judicial district of Hartford,
where the action was withdrawn in part; thereafter, the
matter was tried to the jury before Dubay, J.; verdict
for the defendants; subsequently, the court denied the
plaintiff’s motions to set aside the verdict and for a new
trial, and rendered judgment in accordance with the
verdict, from which the plaintiff appealed to this court,
Lavine, Prescott and Bishop, Js., which affirmed the
trial court’s judgment; thereafter, the plaintiff, on the
granting of certification, appealed to the Supreme
Court, which reversed this court’s judgment and
remanded the case to this court for further proceedings.
Reversed; new trial.
John Serrano submitted a brief for the appellant
(plaintiff).
Allison Reilly-Bombara submitted a brief for the
appellees (defendants).
Opinion
BISHOP, J. This appeal returns to us on remand from
our Supreme Court. At trial in this negligence action,
a jury returned a verdict finding the defendants, Robert
Cohen and Diane Cohen, not liable as landlords for
injuries the plaintiff, Ussbasy Garcia, suffered when she
slipped and fell on the staircase outside her apartment
building on the defendants’ premises. On appeal, the
plaintiff claimed that the court erred by rejecting her
request to charge and failing to instruct the jury that
the owner of real property has a nondelegable duty to
maintain the premises. We affirmed the judgment of the
trial court on March 12, 2019, holding that the plaintiff’s
claims were not reviewable on the basis of the general
verdict rule. See Garcia v. Cohen, 188 Conn. App. 380,
386–87, 204 A.3d 1245 (2019), rev’d, 335 Conn. 3, 225
A.3d 653 (2020). On certification, our Supreme Court
reversed our holding with regard to the general verdict
rule and remanded the case to this court with direction
to consider the plaintiff’s claim of instructional error.
See Garcia v. Cohen, 335 Conn. 3, 28, 225 A.3d 653(2020). On review of the merits, we agree with the
plaintiff that the trial court should have issued a jury
instruction on the defendants’ nondelegable duty to
maintain the premises, and, accordingly, we reverse the
judgment of the trial court.
The following facts and procedural history are set
forth in our Supreme Court’s opinion. ‘‘In the middle
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 testified
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.
The defendants denied the allegations in the complaint
and asserted a special defense alleging that the plain-
tiff’s injuries resulted from ‘her own negligence and
carelessness . . . .’
‘‘A jury trial ensued in which Robert Cohen testified
about how he maintained the property during the winter
months. He testified that three or four individuals
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. 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
evidence later that day, the plaintiff’s attorney
responded: ‘Just the fact that I had filed jury instruc-
tions—proposed jury instructions and jury interrogato-
ries, 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 interrogatories are necessary, and I don’t think that
the nondelegable duty charge is necessary because I’m
specifically charging the jury—or I intend to specifically
. . . charge the jury on the duties that are owed to an
invitee.’ The plaintiff’s attorney answered: ‘Very well.
Thank [you].’
‘‘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 nondel-
egable duty doctrine.1 Following the instructions, the
trial court asked the attorneys if there were any excep-
tions 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.’’ (Footnote added; footnotes omit-
ted.) Id., 6–9.
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 this court, claim-
ing that the trial court improperly had 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.
381–82. At oral argument, this court asked the parties
whether the general verdict rule would apply to bar
consideration of the plaintiff’s instructional claim, and
we later permitted the parties to submit supplemental
briefs on that issue. Subsequently, this court concluded
that the general verdict rule applied and held on that
basis that the plaintiff’s claims of instructional error
were unreviewable. Id., 386–87.
The plaintiff filed a petition for certification to appeal
from the judgment of this court, which was granted by
our Supreme Court. Our Supreme Court held that ‘‘the
Appellate Court incorrectly concluded that the plain-
tiff’s instructional error claim was not reviewable.’’ Gar-
cia v. Cohen, supra, 335 Conn. 28. The court reasoned:
‘‘The general verdict rule does not apply in the present
case because the plaintiff had requested that the trial
court submit her properly framed interrogatories to the
jury and had objected when it denied her request. She
properly framed her interrogatories by submitting ques-
tions addressing her claim of negligence and the defen-
dants’ denial of negligence and special defense of con-
tributory 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 submis-
sion of interrogatories and her objection upon the
court’s refusal to submit them to the jury is a defense
to the application of the general verdict rule, not an
independent claim of error.’’ Id., 6. Accordingly, our
Supreme Court remanded the case to this court with
direction to review the trial court’s denial of the plain-
tiff’s request for a jury instruction on the nondelegable
duty doctrine. Id., 28. Additional facts will be set forth
as necessary.
I
First, the plaintiff claims that the trial court erred
when it refused to give her requested jury instruction
on the nondelegable duty doctrine. Specifically, she
argues that ‘‘the ruling on the instruction rested on the
incorrect assertion that the evidence showed that only
the defendants were responsible for maintaining the
stairway and the ruling violated the principle that a
request to charge must be given if it accurately states
the law and is founded, even weakly, on the evidence,
and is relevant to the issues to be decided by the jury.’’
We agree.
We begin by setting forth our standard of review. ‘‘In
determining whether the trial court improperly refused
a request to charge, [w]e . . . review the evidence pre-
sented at trial in the light most favorable to supporting
the . . . proposed charge. . . . A request to charge
which is relevant to the issues of [a] case and which
is an accurate statement of the law must be given. . . .
If, however, the evidence would not reasonably support
a finding of the particular issue, the trial court has a
duty not to submit it to the jury. . . . Thus, a trial court
should instruct the jury in accordance with a party’s
request to charge [only] if the proposed instructions
are reasonably supported by the evidence.’’ (Internal
quotation marks omitted.) Brown v. Robishaw, 282
Conn. 628, 633, 922 A.2d 1086 (2007).
‘‘The court has a duty to submit to the jury no issue
upon which the evidence would not reasonably support
a finding. . . . The court should, however, submit to
the jury all issues as outlined by the pleadings and
as reasonably supported by the evidence.’’ (Citations
omitted; internal quotation marks omitted.) Goodmas-
ter v. Houser, 225 Conn. 637, 648, 625 A.2d 1366 (1993).
Whether the evidence presented by a party reason-
ably supports a particular request to charge ‘‘is a ques-
tion of law over which our review is plenary.’’ Brown
v. Robishaw, supra, 282 Conn. 633. Similarly, whether
there is a legal basis for the requested charge is a ques-
tion of law also entitled to plenary review. Id., 633–34.
The nondelegable duty doctrine is well established.
‘‘[T]he owner or occupier of premises owes invitees a
nondelegable duty to exercise ordinary care for the
safety of such persons.’’ (Internal quotation marks omit-
ted.) Gazo v. Stamford, 255 Conn. 245, 257, 765 A.2d
505 (2001). ‘‘[T]he nondelegable duty doctrine means
that [the employer] may contract out the performance
of [its] nondelegable duty, but may not contract out
[its] ultimate legal responsibility.’’ (Emphasis omitted;
internal quotation marks omitted.) Machado v. Hart-
ford, 292 Conn. 364, 371–72, 972 A.2d 724 (2009). In
Smith v. Greenwich, 278 Conn. 428, 460, 899 A.2d 563(2006), our Supreme Court stated that ‘‘the owner or
occupier of a premises owes a nondelegable duty to
keep the premises safe by protecting third persons from
foreseeable slip and fall injuries. Should the owner or
occupier of the premises hire a contractor to maintain
the property, the owner or occupier is vicariously liable
for the consequences arising from that contractor’s tor-
tious conduct.’’ In Sola v. Wal-Mart Stores, Inc., 152
Conn. App. 732, 743, 100 A.3d 864, cert. denied, 314
Conn. 941, 103 A.3d 165 (2014), this court summarized
that ‘‘the nondelegable duty doctrine creates a form of
vicarious liability pursuant to which a property owner
may be liable to an invitee for the negligence of its
independent contractors or subcontractors in their per-
formance of the employer’s nondelegable duty, regard-
less of whether the property owner actually is at fault or
the degree of fault.’’ (Internal quotation marks omitted.)
In the present case, there is no dispute that the plain-
tiff’s proposed jury charge was an accurate statement
of the law regarding the nondelegable duty doctrine.
At issue, however, is whether that proposed charge
was reasonably supported by the evidence presented,
viewing that evidence in the light most favorable to
supporting the proposed charge. During trial, Robert
Cohen testified that he hired individuals to assist him
in removing snow from the plaintiff’s steps and in
spreading salt and sand on them. On its face, that testi-
mony implicates the nondelegable duty doctrine
because Robert Cohen testified that there were individ-
uals performing maintenance work on the rear exterior
staircase. Thus, he raised the issue, by implication, of
whether he or the 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.
Nevertheless, the defendants argue that the nondele-
gable duty doctrine does not apply to the facts of this
case because (1) ‘‘there was no evidence, nor was it
argued at trial, that anyone other than the [defendants]
was responsible for maintaining the premises’’ and (2)
the defendants never attempted to shift the burden of
maintaining the premises onto a third party. That first
argument is plainly incorrect. Viewed in the light most
favorable to supporting the proposed charge, Robert
Cohen’s testimony that he employed contractors to
remove snow and otherwise maintain the staircase
establishes that those contractors, in addition to the
defendants, were ‘‘responsible for maintaining the
premises.’’
With respect to the defendants’ second argument, the
plaintiff relies on a series of cases to argue that, so long
as a jury instruction is legally valid and is supported
by admitted evidence, a court must give that instruction,
even if the party requesting the instruction did not press
an argument related thereto at trial. In other words,
even though the plaintiff did not expressly argue at trial
that the defendants were attempting to shift responsibil-
ity to their contractors, the plaintiff argues that the
court improperly failed to give the nondelegable duty
instruction because Robert Cohen’s testimony at trial
reasonably supported that charge. First, in Wasko v.
Farley, 108 Conn. App. 156, 169–70, 947 A.2d 978, cert.
denied, 289 Conn. 922, 958 A.2d 155 (2008), and Futter-
leib v. Mr. Happy’s, Inc., 16 Conn. App. 497, 501–502,
548 A.2d 728 (1988), this court held that, because the
evidence supported a jury charge on an injured party’s
duty to mitigate damages, it was not necessary for the
defendants to have pleaded mitigation as a special
defense. Second, in Al-Janet, LLC v. B & B Home
Improvements, LLC, 101 Conn. App. 836, 842, 925 A.2d
327, cert. denied, 284 Conn. 904, 931 A.2d 261 (2007),
this court rejected a jury instruction as to agency, stat-
ing that ‘‘the plaintiffs have pointed to nothing in the
record to demonstrate that they either requested an
explicit instruction on the law of agency or that the
evidence supported such an instruction.’’ (Emphasis
added.) Finally, in Griffin v. Yankee Silversmith, Ltd.,
109 Conn. App. 9, 15, 951 A.2d 1, cert. denied, 289 Conn.
925, 958 A.2d 151 (2008), a hostile workplace sexual
harassment case, this court held that the trial court
properly declined to instruct the jury on the definition
of quid pro quo sexual harassment, because the quid
pro quo theory ‘‘was neither alleged in her complaint
nor supported by the evidence.’’ (Emphasis added.)
In light of those cases and of Robert Cohen’s trial
testimony in the present case, it is immaterial to the
plaintiff’s claim that the defendants never explicitly
attempted to shift blame to their contractors or employ-
ees. The proposed nondelegable duty charge was rele-
vant to the issues in this case, was an accurate statement
of the law, and was reasonably supported by the evi-
dence adduced at trial. Accordingly, the trial court
should have instructed the jury on the nondelegable
duty doctrine.
II
Second, the plaintiff claims that the court’s refusal
to give her requested jury charge constituted harmful
error that requires us to set aside the jury’s verdict and
remand the case for a new trial. Specifically, the plaintiff
states that ‘‘the court’s failure to charge on nondelega-
bility, coupled with its instruction that the defendants
could be relieved of liability if some other cause so
powerfully caused the plaintiff’s injury that it trivialized
the defendants’ negligence, resulted in an unjust presen-
tation of the plaintiff’s case to the jury.’’ We agree.
We begin by setting forth our standard of review.
‘‘[N]ot every improper jury instruction requires a new
trial because not every improper instruction is harmful.
[W]e have often stated that before a party is entitled
to a new trial . . . he or she has the burden of demon-
strating that the error was harmful. . . . An instruc-
tional impropriety is harmful if it is likely that it affected
the verdict.’’ (Internal quotation marks omitted.) Mahon
v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 656, 935 A.2d
1004 (2007).
‘‘In determining whether an instructional impropriety
was harmless, we consider not only the nature of the
error, including its natural and probable effect on a
party’s ability to place his full case before the jury, but
the likelihood of actual prejudice as reflected in the
individual trial record, taking into account (1) the state
of the evidence, (2) the effect of other instructions, (3)
the effect of counsel’s arguments, and (4) any indica-
tions by the jury itself that it was misled.’’ (Internal
quotation marks omitted.) Smith v. Greenwich, supra,
278 Conn. 439.
In reversing this court’s prior decision, our Supreme
Court stated that, ‘‘[o]n 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 defendants were liable
for any negligence attributed to the snow removal team.
. . . 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 defen-
dant 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). 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.’’ (Citations omitted;
emphasis in original; footnote omitted.) Garcia v.
Cohen, supra, 335 Conn. 23–24.
We find instructive our Supreme Court’s reasoning
on this issue and conclude that the trial court’s failure
to instruct the jury on the defendants’ nondelegable
duty to maintain the premises was harmful. The jury’s
determination that neither party was negligent could
have related only to the named plaintiff and defen-
dants—no instruction was given that would inform the
jury of its ability to attribute any potential negligence
of the defendants’ employees or contractors to the
defendants themselves. The court’s instruction to the
jury that if ‘‘some other cause contributes so powerfully
to the production of an injury as to make the defendants’
negligent contribution to the injury merely trivial or
inconsequential, the defendants’ negligence must be
rejected as a proximate cause of the injury,’’ coupled
with its refusal to instruct the jury on the nondelegable
duty doctrine, compels our conclusion that the likeli-
hood of actual prejudice to the plaintiff is significant
enough to warrant a new trial in this case.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion, PRESCOTT, J., concurred.
* The listing of judges reflects their seniority status on this court as of
the date the appeal was submitted on the briefs.
1
Additionally, in its explanation of proximate cause, the trial court
charged: ‘‘Therefore, when a defendant’s negligence combines together with
one or more other causes to produce an injury, such negligence is a proxi-
mate cause of the injury if its contribution to the production of the injury,
in comparison to all the other causes, is material and substantial—or substan-
tial, I should say. When, however, some other cause contributes so power-
fully to the production of an injury as to make the defendants’ negligent
contribution to the injury merely trivial or inconsequential, the defendants’
negligence must be rejected as a proximate cause of the injury, for it has
not been a substantial factor in bringing that injury about.’’