Kurti v. Becker

Opinion,

DALY, J.

The defendants, Carolyn H. Becker and Frederick Becker, appeal from the judgment against them fohowing a jury trial. The defendants claim that the trial court improperly (1) denied their motion for judgment notwithstanding the verdict and (2) refused to charge the jury as they requested. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On Tuesday, January 25,1994, the eighty-nine year old plaintiff, Alexander Kurti, went to the defendants’ house to play his recorder¹ with a group of people who gathered there every Tuesday. The plaintiff went to the defendants’ house almost every week for five years. On the morning of January 25, the temperature was below freezing, and the defendants’ property, other than the driveway, was covered with snow.

As the plaintiff pulled into the defendants’ driveway at about 10 a.m., he noticed that there was some ice on it. The plaintiff parked his car in the spot where he had parked it almost every time that he went to the defendants’ home, exited his car, walked around it, opened the passenger side of his car and slipped on the ice, breaking his leg. The defendants neither warned the plaintiff of the icy driveway nor attempted to remove the ice from the driveway.

I

The defendants claim that the trial court improperly denied their motion for judgment notwithstanding the verdict because (1) a reasonable jury could not have found from the evidence presented that the defendants had actual or constructive notice of the specific icy condition that caused the plaintiff to fall and (2) the plaintiff failed to prove that the defendants had breached any duty of reasonable care. We disagree.

Additional facts are necessary to our resolution of this claim. At the close of the plaintiffs evidence, the defendants filed a motion for a directed verdict, which the trial court denied. The defendants then rested without presenting any evidence. The jury subsequently returned a plaintiffs verdict of $186,135.11, finding the plaintiff 35 percent comparatively negligent. The defendants filed motions to set aside the verdict and for judgment notwithstanding the verdict, which the trial court denied.

“Our Supreme Court has repeatedly stated that directed verdicts are not favored. . . . Nevertheless, the trial court has the power to set aside a jury verdict that, in its opinion, is contrary to either the law or the evidence. ... A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion. . . . Our review of the trial court’s action in rendering a judgment notwithstanding the verdict necessitates our considering the evidence in the light most favorable to the party who was successful at trial. . . . The verdict should not be set aside and judgment directed if the jury could reasonably and legally have reached its conclusion.” (Citations omitted.) Salaman v. Waterbury, 44 Conn. App. 211, 214-15, 687 A.2d 1318 (1997), rev’d, 246 Conn. 298, 717 A.2d 161 (1998).

A

The defendants claim that the trial court improperly denied their motion for judgment notwithstanding the verdict because a “reasonable jury could not have found from the evidence that the defendants had actual or constructive notice of the specific icy condition which caused the plaintiff to fall,” and, therefore, the evidence could not support the jury’s verdict. We disagree.

“In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee. ... A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe. ... In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.” (Citations omitted.) Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992).

“Invitees fall into certain general categories. A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. ... A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. . . . Section § 52-557a of the General Statutes, which provides that [t]he standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee, in effect recognizes a third kind of invitee, namely, the social invitee. The distinction between one who is an invitee and one who is merely a licensee turns largely on whether the visitor has received an invitation, as opposed to permission, from the possessor of land, to enter the land or remain on the land. Although an invitation itself does not establish the status of an invitee, it is essential to it. Mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee but it does not make him an invitee.” (Citations omitted; internal quotation marks omitted). Corcoran v. Jacovino, 161 Conn. 462, 465-66, 290 A.2d 225 (1971).

An occupier of land is chargeable with constructive notice of defects when dealing with invitees. See Sokolowski v. Medi Mart, Inc., 24 Conn. App. 276, 286, 587 A.2d 1056 (1991). “The determinative question is whether the defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have discovered it and remedied it. . . . It is settled that circumstantial evidence can establish constructive notice.” (Citation omitted.) Id., 286-87.

We conclude that the juiy reasonably could have concluded that the plaintiff was a social invitee. The plaintiff had more than mere permission to be on the defendants’ premises because they invited him to be at their house every Tuesday to play his recorder with a group.

After reviewing the evidence in a light most favorable to sustaining the verdict, we conclude that the jury reasonably could have found that the ice was on the defendants’ driveway for a period of time sufficient for the plaintiff to have had constructive notice of it. The jury reasonably could have inferred from the evidence that the warm air on the day before the plaintiffs fall could have caused the snow near the driveway to melt and then freeze on the defendants’ driveway when the air temperature fell below freezing on the morning of January 25. The record reveals that the air temperature dropped below freezing at least three hours before the plaintiff arrived at the defendants’ home, giving the defendants time to inspect their driveway for ice and to warn the eighty-nine year old plaintiff of the ice. Accordingly, we conclude that the jury reasonably could have found that the defendants had constructive notice of their icy driveway because “in the performance of a reasonable duty to inspect the premises the defendants would have discovered the defective condition which caused the plaintiffs fall in ample time to remedy it before the accident . . . .” Sheehan v. Sette, 130 Conn. 295, 297, 33 A.2d 327 (1943).

B

The defendants also claim that the jury reasonably could not have found that the defendants breached a duty of care to the plaintiff. We disagree.

As noted previously, we conclude that the jury reasonably could have found that the defendants had constructive notice of their icy driveway. The defendants, therefore, had a duty to warn the plaintiff of the ice or had a duty to take reasonable steps to remedy the icy condition. The record reveals that the defendants neither warned the plaintiff, nor remedied the icy condition because the defendants did not call the plaintiff or put sand or salt over the ice. Accordingly, we conclude that the jury reasonably could have found that the defendants breached their duty of reasonable care to the plaintiff.

II

The defendants’ final claim is that the trial court improperly refused to charge the jury that (1) the snow and ice on the defendants’ driveway were not evidence of the defendants’ breach of duty and (2) there is no legal duty to warn an invitee of a dangerous condition already known to the invitee.

Even though the defendants claim that the trial court’s jury instructions were improper, they have failed to furnish us with any portion of the transcript as part of the record of their appeal. “It is the responsibility of the appellant to provide an adequate record for review . . . .” Practice Book § 60-5. “When error is claimed in the charge to the jury, the brief or appendix shall include a verbatim statement of all relevant portions of the charge and all relevant exceptions to the charge. . . . Evidence relevant to the claimed error shall be recited in narrative form with appropriate references to the page or pages of the transcript.” Practice Book § 67-4; Housing Authority v. Pine Assn., Inc., 13 Conn. App. 489, 491, 537 A.2d 526 (1988). Because the defendants have failed to provide us with transcripts of the trial court’s instructions, we cannot determine whether they were sufficient to guide the jury. Accordingly, we decline to address the defendants’ claim.

The judgment is affirmed.

In this opinion SULLIVAN, J., concurred.

1 A recorder is a wind instrument with eight finger holes and a whistle mouthpiece. Merriam-Webster’s Collegiate Dictionary (10th Ed.).