Sola v. Wal-Mart Stores, Inc.

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RICKY SOLA v. WAL-MART STORES, INC., ET AL.
(AC 35328)
Lavine, Prescott and West, Js.
Argued May 19—officially released September 16, 2014
(Appeal from Superior Court, judicial district of
Hartford, Scholl, J.)
Gary J. Strickland, for the appellant (plaintiff).
Gary Hohenthal, with whom, on the brief, was
Amanda Carlson, for the appellee (defendant Wal-Mart
Stores East I Limited Partnership).
Opinion
PRESCOTT, J. In this action arising from an alleged
slip and fall at a Wal-Mart store, the plaintiff, Ricky
Sola, appeals from the trial court’s denial of his motion
to set aside the jury’s verdict in favor of the defendant
Wal-Mart Stores East I Limited Partnership.1 The plain-
tiff claims on appeal that, in crafting its jury instructions
and interrogatories, the court misconstrued and misap-
plied the nondelegable duty doctrine and that those
errors misled the jury as to the applicable law, thereby
affecting the verdict. We agree with the plaintiff.
Accordingly, we reverse the judgment of the trial court
and remand the matter with direction to grant the
motion to set aside the verdict and for a new trial.2
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
resolution of the issues on appeal. On October 1, 2008,
shortly before closing time, the plaintiff went shopping
for Halloween supplies at the Wal-Mart store (store) in
Rocky Hill operated by the defendant.3 He was accom-
panied by several individuals, including his minor chil-
dren and his brother. At that time, the store was
undergoing renovations, but remained open to cus-
tomers.
The defendant had hired Zlotnick Construction as the
general contractor to oversee the renovation project.
Zlotnick Construction, in turn, had hired additional sub-
contractors to work on the project, including Horizon
Services (Horizon). Horizon was tasked with cleaning
and refinishing the store’s floors, which included strip-
ping off the old wax finish and applying a new coat of
wax. A Horizon employee, Kevin Largie, was scheduled
to work at the store on the night of October 1, 2008.
Largie arrived at the store at approximately 9:30 p.m.
and reported to the general contractor. The general
contractor directed Largie to begin working on the
floors in the seasonal products section of the store,
which, at the time, housed the store’s Halloween mer-
chandise.
The stripping process involved applying a solution
of floor stripper and water to the floor for approxi-
mately ten to fifteen minutes, after which time the old
finish could be scraped up and removed. Largie began
by testing the effectiveness of the stripping solution on
a five or six foot section of floor near the end of one
of several aisles in the seasonal product section (test
area). Because the stripping solution caused the floor
to be slippery where applied, Largie blocked off the
test area with various equipment to prevent anyone
from unknowingly entering the test area. After applying
the stripping solution to the test area, Largie left the
area for a few minutes, going into a nearby storage
area. When he returned, the plaintiff, who had been
shopping in the seasonal products section, informed
Largie that he had slipped and fallen in the test area,
injuring himself. The assistant manager on duty was
notified of the incident, and met with the plaintiff and
his companions at the front of the store. An ambulance
was called for the plaintiff.4
In June, 2010, the plaintiff commenced the present
action. In the operative complaint, he alleged that, at
the time of his fall, the section of floor where he fell was
in an unsafe condition due to the presence of stripping
solution or some other liquid, that the presence of the
liquid on the floor caused him to fall and to injure
himself, and that the defendant, through its agents, ser-
vants or employees, knew or should have known of the
existence of the unsafe condition of the floor, but failed
to remedy it or to adequately warn shoppers of the
danger.5 The defendant admitted in its answer to the
complaint that it had a duty to exercise reasonable care
in maintaining the store’s floors for its customers, but
denied all allegations in the complaint that it had acted
negligently in exercising that duty. The defendant
alleged by way of special defense that the plaintiff’s
own negligence was a substantial factor in causing his
fall and injuries. The plaintiff denied all allegations in
the special defense.
The matter was tried to a jury over three days. During
the trial, the plaintiff filed a request to charge that
included a proposed instruction regarding the nondele-
gable duty doctrine.6 The proposed instruction provided
that if the jury found that Horizon or its employees
were negligent in failing to keep the floors in a reason-
ably safe condition, that negligence was fully charge-
able to the defendant pursuant to the nondelegable
duty doctrine.
The court did not adopt the plaintiff’s proposed
instruction with respect to the nondelegable duty doc-
trine, instead charging the jury as follows: ‘‘[The defen-
dant] has what we call a nondelegable duty to maintain
the safety of its . . . premises. This means that it owes
a duty to exercise ordinary care to safely maintain the
premises and while it may contract out the performance
of that duty, it may not contract out its ultimate legal
responsibility. In other words, [the defendant] is respon-
sible for the damages to which [the plaintiff] may be
entitled due to its negligence and it cannot escape liabil-
ity for any such injury by claiming it had contracted
with someone else to maintain the property in a reason-
ably safe condition.’’7
As a part of its instructions to the jury, the court also
discussed the verdict form, which included a number of
interrogatories drafted by the court. The court informed
the jury that the interrogatories were ‘‘designed to help
[the jury] go through the issues that need to be decided
in order to reach [a] verdict.’’ The court instructed the
jury to ‘‘start from the beginning and go as far as you
need to go and answer the questions in order.’’ The court
explained that the first few interrogatories pertained to
the issue of notice, and that if the jury were to find
a lack of notice, this would require a verdict for the
defendant. The court explained that this was because,
as it had stated in its earlier instructions, ‘‘in order for
the defendant to be liable it had to either have [had]
actual or constructive notice of the dangerous condition
of the floor where [the plaintiff] fell.’’8 After deliberating,
the jury returned a verdict for the defendant. In its
answers to the interrogatories, the jury indicated that
it did not find that the defendant had actual or construc-
tive notice of the unsafe condition of the floor where
the plaintiff fell. The jury did not answer the remaining
interrogatories.
The plaintiff filed a timely motion to set aside the
verdict pursuant to Practice Book § 16-35. He argued
that the court’s jury instructions, combined with the
interrogatories, were misleading and incorrect as to
the applicable law, and that the errors were harmful
because they affected the verdict. More specifically, he
argued that the court’s instructions and interrogatories
effectively mandated a verdict for the defendant unless
the jury found that the defendant had actual or construc-
tive notice of the condition of the test area, and that
the jury was directed that it could impute actual notice
to the defendant only if the jury found that the defendant
itself actually knew of the unsafe condition of the floor,
or it found that Horizon had been acting as the defen-
dant’s agent and had created the unsafe condition.
According to the plaintiff, however, pursuant to the
nondelegable duty doctrine, the jury also should have
been instructed that if it found that Horizon, through
its employee Largie, had acted negligently by creating
an unsafe condition that caused the plaintiff’s fall, Hori-
zon’s negligence was fully attributable to the defendant,
regardless of whether Horizon had been acting as the
defendant’s agent or whether the defendant had actual
or constructive notice of the unsafe condition. The
plaintiff also argued that ‘‘the jury could not have
reached any other conclusion but that Horizon was
negligent,’’ and thus the court’s failure to instruct on
vicarious liability under the nondelegable duty doctrine
was harmful error because it eliminated a path to a
plaintiff’s verdict.
The defendant filed an objection to the motion to set
aside the verdict. It argued that although the court had
not adopted all of the plaintiff’s proposed instructions,
the court’s jury charge and interrogatories were legally
correct and properly reflected the issues before the
jury. The defendant maintained that although it had a
nondelegable duty to maintain the safety of its premises,
the plaintiff, in order to recover from the defendant on
a theory of premises liability, still had the burden of
proving all necessary elements of a premises liability
cause of action, including that the defendant had actual
or constructive notice of the specific defect alleged to
have resulted in the plaintiff’s injuries. The defendant
also disputed the plaintiff’s argument that the evidence
clearly established Horizon’s negligence. Moreover, the
defendant contended that the jury’s responses to the
interrogatories finding that the defendant did not have
actual or constructive notice of the condition of the
floor were consistent with a finding of no dangerous
condition, thus providing a basis for upholding the jury’s
verdict independent of any error in the jury instructions
regarding the nondelegable duty doctrine.
The court heard arguments on the motion to set aside
the verdict, following which it issued a written memo-
randum of decision denying the motion. The court con-
cluded that its jury instructions properly set forth the
law and disagreed with the plaintiff that the jury should
have been instructed that the defendant could be found
vicariously liable for the negligence of Horizon pursuant
to the nondelegable duty doctrine. The court’s reason-
ing was twofold. First, the court stated that the issue
before the jury was not the negligence of Horizon, but
the negligence of the defendant, indicating later in the
memorandum of decision that the operative complaint
‘‘contain[ed] no reference to Horizon, or its employees
. . . or that Horizon was negligent, and that, therefore,
[the defendant] was liable for Horizon’s negligence.’’
Second, the court disagreed with the plaintiff’s asser-
tion that the nondelegable duty doctrine was ‘‘a means
of imposing vicarious liability on a landowner for any
negligent activity on its property by an independent
contractor . . . .’’ But see Smith v. Greenwich, 278
Conn. 428, 458, 899 A.2d 563 (2006) (‘‘[n]ondelegable
duties create a form of vicarious liability’’). This
appeal followed.
Before turning to the merits of the plaintiff’s claim,
we briefly set forth the legal standard that governs our
review of a trial court’s denial of a motion to set aside
a jury verdict. ‘‘The trial court possesses inherent power
to set aside a jury verdict which, in the court’s opinion,
is against the law or the evidence. . . . [The court]
should not set aside a verdict [if] it is apparent that
there was some evidence upon which the jury might
reasonably reach their conclusion, and should not
refuse to set it aside [if] the manifest injustice of the
verdict is so plain and palpable as clearly to denote that
some mistake was made by the jury in the application of
legal principles . . . . Ultimately, [t]he decision to set
aside a verdict entails the exercise of a broad legal
discretion . . . that, in the absence of clear abuse, we
shall not disturb.’’ (Internal quotation marks omitted.)
Edmands v. CUNO, Inc., 277 Conn. 425, 452–53, 892
A.2d 938 (2006). With that standard in mind, we now
turn to the plaintiff’s claim.
The plaintiff claims that the court abused its discre-
tion in denying his motion to set aside the verdict
because its jury instructions and interrogatories misled
the jury to believe that it could hold the defendant liable
only if the defendant had actual or constructive notice
of the dangerous condition of the test area where the
plaintiff allegedly fell. In particular, the plaintiff argues
that the jury instructions and interrogatories failed to
accurately address the nondelegable duty doctrine, and
that if the jury had been instructed properly, it could
have found the defendant vicariously liable for the negli-
gence of Horizon, regardless of actual or constructive
notice by the defendant of the condition of the test
area. We begin our analysis by setting forth the law
governing a property owner’s liability to invitees for
the actions of independent contractors and the nondele-
gable duty doctrine. We then turn to a consideration
of the adequacy of the court’s jury instructions and
interrogatories, and whether they provided the jury with
proper guidance to understand and to determine the
issues before it. Because we determine that the court’s
instructions and interrogatories did not provide the jury
proper guidance, we ultimately conclude that the court
abused its discretion by denying the plaintiff’s motion
to set aside the verdict.
It is a well established general principle of tort law
that an employer is not liable for the negligence of its
independent contractor. See Machado v. Hartford, 292
Conn. 364, 371, 972 A.2d 724 (2009); 2 Restatement
(Second), Torts § 409, p. 370 (1965); 41 Am. Jur. 2d,
Independent Contractors § 27, p. 497 (2005). There are,
however, many exceptions to that general rule.9 One
such exception arises from the nondelegable duty doc-
trine. Gazo v. Stamford, 255 Conn. 245, 257, 765 A.2d
505 (2001). ‘‘[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 omitted.) Id. ‘‘[T]he nondelegable duty doctrine
means that [the employer] may contract out the perfor-
mance of [its] nondelegable duty, but may not contract
out [its] ultimate legal responsibility.’’ (Emphasis omit-
ted; internal quotation marks omitted.) Machado v.
Hartford, supra, 371–72. In Smith v. Greenwich, supra,
278 Conn. 460, our Supreme Court stated that ‘‘the
owner or occupier of a premises owes a nondelegable
duty to keep the premises safe by protecting third per-
sons 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 vicari-
ously liable for the consequences arising from that
contractor’s tortious conduct.’’ (Emphasis added.) In
other words, 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
performance of the employer’s nondelegable duty,
‘‘regardless of whether the property owner actually is
at fault or the degree of fault.’’ (Emphasis omitted.) Id.,
461. ‘‘In vicarious liability situations, the law has . . .
broaden[ed] the liability for that fault by imposing it
upon an additional, albeit innocent, defendant; namely,
the party that has the nondelegable duty.’’ (Citation
omitted; emphasis omitted; internal quotation marks
omitted.) Gazo v. Stamford, supra, 257.10 Thus, under
these principles, even if a property owner has no actual
or constructive knowledge of an unsafe condition on
the property such that the property owner could not
be held directly liable for injuries to an invitee caused
by the unsafe condition, the property owner still may
be held vicariously liable for any injuries to the invitee
caused by the condition if it resulted from the negligent
acts or omissions of an independent contractor hired
to perform work on the property in furtherance of a
property owner’s nondelegable duty to keep its prem-
ises reasonably safe for invitees.
Our case law recognizing that a property owner may
be held vicariously liable for the negligence of an inde-
pendent contractor performing maintenance or repair
work on the property is in accord with § 422 of the
Restatement (Second) of Torts, which sets forth the
following rule: ‘‘A possessor of land who entrusts the
repair of a building or other structure thereon to an
independent contractor is subject to the same liability
to persons within or outside the land who are injured
by the contractor’s negligent failure to put or maintain
the building or structure in reasonably safe condition
as though he had retained the making of the repairs
in his own hands.’’ (Emphasis added.) 2 Restatement
(Second), supra, § 422, p. 405.
Courts in other jurisdictions also have held that prop-
erty owners may be vicariously liable to invitees for
the negligence of an independent contractor or subcon-
tractor performing repair work, viewing adoption of
such a rule as an extension of a property owner’s non-
delegable duties to business invitees. See Koepke v.
Carter Hawley Hale Stores, Inc., 140 Ariz. 420, 423–24,
682 P.2d 425 (App. 1984), and cases cited therein
(department store may be vicariously liable for invitee’s
injuries after tripping on chalk line stretched across
aisle by employees of contractor during remodeling of
store despite lack of evidence that store had notice
of defect); see also Bryant v. Sherm’s Thunderbird
Market, 268 Or. 591, 600–602, 522 P.2d 1383 (1974) (store
owner could be vicariously liable to invitee for injuries
as result of negligence of independent contractor
engaged in upgrading store fixtures).
Having set forth the applicable law, we now turn to an
examination of the jury instructions and interrogatories
provided by the court in the present matter.
We first consider the propriety of the court’s jury
instructions. In reviewing a challenge to jury instruc-
tions, ‘‘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 not whether it is as accurate upon
legal principles as the opinions of a court of last resort
but whether it fairly presents the case to the jury in
such a way that injustice is not done to either party
under the established rules of law. . . . As long as [the
instructions] are correct in law, adapted to the issues
and sufficient for the guidance of the jury . . . we will
not view the instructions as improper. . . . Instruc-
tions are adequate if they give the jury a clear under-
standing of the issues and proper guidance in
determining those issues.’’ (Citation omitted; internal
quotation marks omitted.) Smith v. Greenwich, supra,
278 Conn. 437.
In the present case, after the court set forth the essen-
tial elements of a negligence cause of action—duty,
breach of duty, causation, and damages—and explained
the duties owed by the defendant to the plaintiff as a
business invitee, the court instructed the jury as follows:
‘‘Now, in order for [the plaintiff] to recover from [the
defendant], he must also prove that [the defendant]
had actual notice, that is, actually knew of the unsafe
condition of the floor long enough before [the plaintiff’s]
injury to have taken steps to correct the condition or
to take other suitable precautions. If the condition was
one that was created by [the defendant] or one of its
agents, then that constitutes actual notice. In this
regard, you must determine whether the subcontractor
working on the floor was [the defendant’s] agent. An
agent is someone who has been designated by another
to act on its behalf and subject to its control. An agent
is someone who is doing something at the behest and
for the benefit of another. The three elements required
to show the existence of an agency relationship here
include (1) a manifestation by [the defendant] that the
subcontractor will act for it; (2) acceptance by the sub-
contractor of the undertaking; and (3) an understanding
between the parties that [the defendant] will be in con-
trol of the undertaking. If you find that the subcontrac-
tor working on the floor was [the defendant’s] agent
and that he created . . . the dangerous condition, then
you must find that [the defendant] had actual notice of
the condition. Now, if [the defendant] did not have
actual notice . . . of the defect or the condition was
not caused by it or its agent, it may still be liable if it
had constructive notice of the defect. That means that
[the defendant], using reasonable care, should have
known of the unsafe condition in time to have taken
steps to correct the condition or to take other suitable
precautions. You may consider whether [the defendant]
inspected the premises on a reasonable basis or on a
reasonable way in determining whether it should have
known of the unsafe condition. You may consider the
length of time the condition had existed in determining
whether [the defendant] should have known of the con-
dition had it used reasonable care. In deciding the issue
of notice, the subsidiary question is whether the defect
had existed for such a length of time that [the defen-
dant], in the exercise of due care, should have discov-
ered it in time to have remedied it prior to [the
plaintiff’s] fall. Which constitutes a reasonable time is
a question of fact for you to determine based on the
circumstances you find to have existed in this case.’’
Before turning to its instructions regarding the ele-
ment of causation, the court interjected its instruction
regarding the nondelegable duty doctrine, stating: ‘‘[The
defendant] has what we call a nondelegable duty to
maintain the safety of its . . . premises. This means
that it owes a duty to exercise ordinary care to safely
maintain the premises, and while it may contract out
the performance of that duty, it may not contract out
its ultimate legal responsibility. In other words, [the
defendant] is responsible for the damages to which [the
plaintiff] may be entitled due to its negligence, and it
cannot escape liability for any such injury by claiming
it had contracted with someone else to maintain the
property in a reasonably safe condition.’’ The court then
finished the remainder of its instructions.11
Considering the entirety of the court’s instructions,
we agree with the plaintiff that they did not give the
jury a clear understanding of the issues with respect
to the nondelegable duty doctrine and its application
to the facts of the present case. As a whole, the instruc-
tions given by the court were accurate to the extent
that the case involved a determination of the direct
liability of the defendant. This case, however, also
involved the potential liability of the defendant stem-
ming from the negligence of an independent contractor
while performing repairs to property, thus implicating
the defendant’s nondelegable duty to ensure the safety
of its premises. Despite instructing the jury that the
defendant had a nondelegable duty to keep the premises
reasonably safe, the court’s instruction did not provide
the jury with any guidance on how to interpret or to
apply that instruction, especially in light of the immedi-
ately preceding instructions on notice and agency.
The court’s instruction contained no reference to
vicarious liability, although, as set out previously, that
is the applicable law in this state if an independent
contractor acts negligently in the performance of a
property owner’s nondelegable duty to reasonably
maintain the safety of its property for invitees. See
Smith v. Greenwich, supra, 278 Conn. 460. In contrast
with the instruction requested by the plaintiff, the
court’s instruction did not inform the jury that, pursuant
to the nondelegable duty doctrine, the jury could find
the defendant liable to the plaintiff if it found that Hori-
zon, through its employee, Largie, had acted negligently
by failing to keep the test area reasonably safe, regard-
less of whether the jury also determined that Horizon
was not the defendant’s agent or that the defendant did
not have actual or constructive notice of the condition
of the test area.
In its memorandum of decision denying the motion
to set aside the verdict, the court reasoned that an
instruction imposing vicarious liability on a landowner
for an independent contractor’s negligence in main-
taining the safety of the landowner’s property would
‘‘transform a landowner’s duty to one of strict liability
to someone injured on its premises.’’ Contrary to the
trial court’s statement, proper application of the nondel-
egable duty doctrine does not mean that a property
owner is liable for all injuries that might occur on its
property. See Hellamns v. Yale-New Haven Hospital,
Inc., 147 Conn. App. 405, 410, 82 A.3d 677 (2013) (prop-
erty owners not insurer of the safety of its invitees),
cert. granted on other grounds, 311 Conn. 918, 85 A.3d
652 (2014). Instead, a property owner is liable only for
an injury that is proven to have resulted from a negligent
act of an independent contractor in the performance
of a nondelegable duty. That is not strict liability.
The court also reasoned that the plaintiff was not
entitled to recover on a theory of vicarious liability
because ‘‘the plaintiff’s cause of action was not pled as
a vicarious liability claim but as a premises liability
claim.’’ The court emphasized that the operative com-
plaint lacks any specific references to Horizon or its
employees, and does not allege that Horizon was negli-
gent or that the defendant was liable for Horizon’s negli-
gence. We are not persuaded that, under the
circumstances of this case, the lack of such allegations
is fatal to the plaintiff’s opportunity to recover under
a theory of vicarious liability pursuant to the nondelega-
ble duty doctrine.
Despite the lack of specific allegations in the com-
plaint regarding Horizon, the nondelegable duty doc-
trine was a part of the case as it was presented and
tried to the jury. Prior 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 liability on the defendant for the negli-
gence of its independent contractor. That theory was
stated in the plaintiff’s motion in limine filed prior to
the trial; see footnote 6 of this opinion; and was included
as part of the plaintiff’s request to charge on the nondel-
egable duty doctrine. The plaintiff presented evidence
at trial from which the jury reasonably could have found
that Horizon, through Largie, was negligent in applying
stripping solution to the test area and then leaving the
area unguarded without properly warning customers
of the potential slip and fall hazard it had created.
Indeed, the fact that the court actually gave a nondelega-
ble duty instruction to the jury is compelling evidence
that all participants, including the court, understood
that the doctrine had been raised in the case and must
be applied to the facts as pleaded. Significantly, the
defendant did not object to the court giving a nondelega-
ble duty instruction. Because the nondelegable duty
doctrine was part of the case before the jury, the court
was required to accurately instruct the jury in accor-
dance with the law. In sum, the jury instructions given
by the court were incomplete and failed to accurately
present the case to the jury under established law
because the jury was unaware it could consider whether
the defendant was liable for the negligent actions of
Horizon and its employees regardless of any actual or
constructive notice of the unsafe condition.
Furthermore, any deficiencies in the instructions
were compounded by the interrogatories and attendant
instructions included on the verdict form. ‘‘The power
of the trial court to submit proper interrogatories to
the jury, to be answered when returning [its] verdict,
does not depend upon the consent of the parties or the
authority of statute law. In the absence of any manda-
tory enactment, it is within the reasonable discretion
of the presiding judge to require or to refuse to require
the jury to answer pertinent interrogatories, as the
proper administration of justice may require. . . . The
trial court has broad discretion to regulate the manner
in which interrogatories are presented to the jury, as
well as their form and content. . . . Moreover, [i]n
order to establish reversible error, the defendant must
prove both an abuse of discretion and a harm that
resulted from such abuse. (Citation omitted; internal
quotation marks omitted.) Earlington v. Anastasi, 293
Conn. 194, 200, 976 A.2d 689 (2009).
Here, the court instructed the jury that the interroga-
tories were intended to guide it in reaching a verdict,
and the court asked the jury to answer the interrogato-
ries in the order that they were presented. ‘‘[W]hen a
jury has received an instruction, it is presumed to have
followed such instruction unless the contrary appears.’’
(Internal quotation marks omitted.) Stratek Plastic Ltd.
v. Ibar, 145 Conn. App. 414, 419, 74 A.3d 577, cert.
denied, 310 Conn. 937, 79 A.3d 890 (2013). The first few
interrogatories focused on the issue of notice. The first
interrogatory asked the jury to answer whether the
defendant had actual notice of the unsafe condition of
the floor where the plaintiff fell. If it answered no, the
jury was instructed to move to the third interrogatory,
which asked whether the defendant had constructive
notice of the unsafe condition. If the jury also answered
interrogatory three in the negative, the instructions
required the jury to stop and to return a verdict for the
defendant, and to ‘‘go no further.’’ As we have already
set forth, however, under a proper application of the
nondelegable duty doctrine, a determination of notice
would not be wholly dispositive of the issue of the
defendant’s liability, and, therefore, the court abused
its discretion by issuing interrogatories requiring the
jury to return a verdict for the defendant on finding
that the defendant lacked actual or constructive notice
of the condition of the test area.
Finally, the defendant argues that regardless of any
errors in the jury instructions and interrogatories
regarding the nondelegable duty doctrine, the jury may
have returned a verdict for the defendant for reasons
unrelated to the claims raised by the plaintiff. The fol-
lowing additional facts are relevant to our consideration
of this argument. The plaintiff testified at trial that upon
walking around the corner from an aisle adjacent to
the test area, he slipped on the wet floor in the test
area. He claimed that he observed no warning signs
indicating that the floor was slippery or wet, and did
not encounter any equipment blocking his entry to the
test area. Largie testified, however, that he had com-
pletely blocked off the test area and that in order for
someone to have entered the test area, a person would
have had to have gone over the ‘‘stuff’’ he used as a
makeshift barrier, which included ‘‘mop buckets, the
mop sticks, the vacuum, the scrubber and other stuff
that we had there.’’ Largie also testified that he did not
observe any wet spots on the plaintiff’s clothing or see
any other indicators that the plaintiff had fallen in the
test area.
The defendant contends that the jury could have
found that no unsafe condition actually existed because
it believed that Largie adequately had barricaded off
the test area from customers or that the jury might not
have believed that the plaintiff’s fall and injuries were
caused by an unsafe condition with the floor. The defen-
dant’s argument is unpersuasive, however, as it ignores
that the court instructed the jury to follow the interroga-
tories provided in reaching its verdict and to consider
them in the order presented. The first interrogatories
directed the jury’s attention to the issue of notice ‘‘of
the unsafe condition of the floor where the plaintiff
. . . fell.’’ As written, the interrogatories appear to
assume both that the floor was in an unsafe condition
and that the plaintiff fell. It is unreasonable to construe
the jury’s verdict as having been reached on any basis
other than lack of notice.
The judgment is reversed and the case is remanded
with direction to grant the plaintiff’s motion to set aside
the verdict and for a new trial.
In this opinion the other judges concurred.
1
The original complaint named Wal-Mart Stores, Inc., and Doug Yeakey,
the Wal-Mart store manager, as defendants. The plaintiff later filed an
amended complaint that corrected the name of the defendant Wal-Mart
Stores, Inc., to Wal-Mart Stores East I Limited Partnership. On the first day
of trial, the plaintiff indicated to the court that he was withdrawing his
action as to Yeakey. Accordingly, we refer to Wal-Mart Stores East I Limited
Partnership throughout this opinion as the defendant.
2
The plaintiff also claims on appeal that the trial court committed plain
error by permitting the defendant’s counsel to suggest during his closing
argument that the jury should draw an adverse inference from the absence
of any witnesses corroborating the plaintiff’s version of events without first
making a threshold showing that those witnesses were, in fact, available to
testify. See General Statutes § 52-216c; Raybeck v. Danbury Orthopedic
Associates, P.C., 72 Conn. App. 359, 370, 805 A.2d 130 (2002) (holding
improper for counsel to comment on plaintiff’s failure to present witness
without first providing evidentiary basis that witness was available to testify
at trial). Because we reverse the judgment and remand the matter for a new
trial on the basis of the plaintiff’s claim of instructional error, we do not
reach this additional, unpreserved claim.
3
Although the store closed at 10 p.m., customers who were already inside
the store were allowed to remain to complete their transactions.
4
The plaintiff, who was complaining of pain in his back, right hip, and
right arm and wrist, was examined at the hospital and released without
treatment. The plaintiff later saw a private physician, who prescribed Motrin
and referred the plaintiff to physical therapy. The plaintiff attended twenty-
five physical therapy sessions over a period of six months. The plaintiff
finished treatment in April, 2009, following which he continued to complain
of discomfort in his lower back.
5
More specifically, the plaintiff alleged in his complaint that the defendant
had been negligent in one or more of the following ways: (1) it failed to
maintain the floor in a reasonably safe condition; (2) it failed to dry the
liquid on the floor; (3) it failed to remove the liquid from the floor; (4) it
failed to promptly inspect the floor; (5) it failed to post appropriate signs
warning of the danger on the floor; (6) it failed to inspect the surrounding
area for leaks leading to the presence of liquid on the floor; and (7) it failed
to warn of the liquid on the floor.
6
Prior to the commencement of the trial, the plaintiff also had raised the
applicability of the nondelegable duty doctrine in a motion in limine that
asked the court to preclude the defendant ‘‘from offering any evidence of,
mentioning, arguing, relying upon or asserting the defense of independent
contractor in this case.’’ The plaintiff argued in that motion that the defendant
had failed to specially plead an independent contractor defense and that
the nondelegable duty doctrine precluded the defendant from disclaiming
responsibility for the negligence of its independent subcontractor Horizon,
because, pursuant to that doctrine, the defendant was vicariously liable for
Horizon’s negligence with respect to maintaining the safety of the store’s
floors. The plaintiff also argued that an independent contractor defense was
unavailing in this case because an actual agency relationship existed between
the defendant and Horizon, and, pursuant to the law of agency, the defendant,
as principal, is vicariously liable for the negligent acts of its agents. The
court denied the motion in limine, concluding that the issues raised in the
motion were legal issues that could be addressed in the court’s charge to
the jury depending upon the factual evidence adduced at trial.
7
The record indicates that a charging conference was conducted in cham-
bers, and that neither side placed on the record any summary or description
of the matters discussed during the charging conference. Accordingly, the
record does not reflect the basis for the court’s decision not to use the
plaintiff’s proposed instruction with respect to the nondelegable duty
doctrine.
8
The jury interrogatories at issue provided as follows:
‘‘Plaintiff’s Claims
1. Do you find that the defendant, Wal-Mart Stores East I Limited Partner-
ship, had actual notice of the unsafe condition of the floor where the plaintiff,
Ricky Sola, fell?
__________ Yes __________ No
If you answered ‘yes’ continue to question #2. If you answered ‘no’ continue
to question #3.
2. Wal-Mart Stores East I Limited Partnership had actual notice of the
unsafe condition of the floor where the plaintiff, Ricky Sola, fell because
(check all that apply):
_______ it had actual notice of the unsafe condition
_______ we find the subcontractor to be the agent of Wal-Mart and find
the subcontractor to have created the unsafe condition.
Continue to question #4.
3. Do you find that Wal-Mart Stores East I Limited Partnership had con-
structive notice of the unsafe condition of the floor where the plaintiff,
Ricky Sola, fell?
__________ Yes __________ No
If you answered ‘no’ to questions #1 and #3 you have entered a verdict
in favor of Wal-Mart Stores East I Limited Partnership, and against the
plaintiff, Ricky Sola, the foreperson should date and sign below and go
no further.’’
9
As noted in the comments to § 409 of the Restatement (Second) of Torts,
the exceptions ‘‘are so numerous, and they have so far eroded the ‘general
rule,’ that it can now be said to be ‘general’ only in the sense that it is
applied where no good reason is found for departing from it.’’ 2 Restatement
(Second), supra, § 409, comment b, p. 370.
10
It is important to note that a property owner who hires an independent
contractor to conduct repairs or to perform other work on the property is
subject to being found vicariously liable for the negligence of the indepen-
dent contractor with respect to a nondelegable duty only if the property
owner also has retained possession and control of the property. See Archam-
bault v. Soneco/Northeastern, Inc., 287 Conn. 20, 54, 946 A.2d 839 (2008)
(trial court improperly instructed jury to apply nondelegable duty doctrine
in case where evidence failed to establish defendant retained or exercised
control over work site); Millette v. Connecticut Post Ltd. Partnership, 143
Conn. App. 62, 75, 70 A.3d 126 (2013) (nondelegable duty doctrine only
applies if plaintiff establishes defendant maintained possession and control
of property). In the present case, the court found that the defendant had
admitted in its answer to the complaint to retaining possession and control
of the test area during the remodeling process, and thus possession and
control was not a matter before the jury.
11
After the court finished with its jury instructions, it asked the parties
outside the presence of the jury for any ‘‘exceptions, suggestions, com-
ments.’’ The plaintiff did not object at that time to the court’s instruction
on the nondelegable duty doctrine or its failure to instruct on vicarious
liability. We nevertheless find that those issues were adequately preserved
for appellate review by the plaintiff having filed a request to charge. See
Practice Book § 16-20; Sevigny v. Dibble Hollow Condominium Assn., Inc.,
76 Conn. App. 306, 317, 819 A.2d 844 (2003).