ADELSON LUIZ DECASTRO, ADMINISTRATOR (ESTATE OF JOSE LUIZ DECASTRO), ET AL.
ODETAH CAMPING RESORT, INC.
November 17, 2016
from Superior Court, judicial district of Fairfield, Kamp, J.
J. Pianka, for the appellant (named plaintiff).
R. Cramer, for the appellee (defendant).
DiPentima, C. J., and Keller and Bear, Js.
wrongful death action, the plaintiff, Adelson Luiz DeCastro,
the administrator of the estate of Jose Luiz DeCastro
(decedent),  appeals from the judgment rendered by the
trial court in accordance with its decision granting a motion
for judgment notwithstanding the verdict filed by the
defendant, Odetah Camping Resort, Inc. The decedent drowned
while swimming in a lake abutting the defendant's resort.
On appeal, the plaintiff claims that the trial court erred in
(1) applying the wrong legal standard for proximate cause;
and (2) rendering judgment notwithstanding the verdict when
the jury reasonably could have concluded that the
defendant's negligence was a proximate cause of the
plaintiff's injuries. We disagree and affirm the judgment
of the court.
April 12, 2012, the plaintiff commenced this wrongful death
action against the defendant and claimed in his operative
complaint that the defendant was negligent in (1) failing to
provide lifeguards at its swimming area, and (2) that the
defendant knew or should have known of the dangers associated
with encouraging guests to swim to its two large recreational
flotation devices located outside of the designated swimming
area, yet failed to take reasonable steps to secure their
safety in doing so. The jury returned a verdict in favor of
the defendant on the first ground and in favor of the
plaintiff on the second ground; the court accepted that
verdict. Following the defendant's motion for judgment
notwithstanding the verdict, the court granted the motion,
rendering judgment for the defendant on the second ground
because it found that the plaintiff had failed to provide
evidence that the negligence of the defendant proximately
caused the death of the decedent. This appeal followed.
memorandum of decision on the defendant's motion for
judgment notwithstanding the verdict, the trial court
reasoned that the jury could have found as follows.
‘‘On July 7, 2011, the decedent and a group of
friends went to the defendant resort located in Bozrah . . .
. In order to gain entrance, the decedent paid an entrance
fee. The defendant is an approximately 100 acre campground
that offers multiple recreational activities. In addition to
facilities to accommodate overnight camping, the defendant
offers sporting facilities, which include a pool as well as
volleyball, tennis, and basketball courts. The defendant
abuts a large, thirty-two acre freshwater lake, which
includes a small beach, and offers swimming and boating
activities. A portion of the lake that is adjacent to the
beach has a designated swim area. The boundaries of the swim
area are designated by a rope line and buoys. Just beyond the
roped-off swimming area are two inflatable platforms. One was
described as a platform or trampoline, and the other was
described as an ‘iceberg.' Both inflatable devices
were attractions to be used by the resort guests. The
defendant did not provide lifeguards at the pool or lake swim
area. A single sign was posted at one end of the beach area,
indicating: ‘No Lifeguard on Duty. Swimat Your Own
Risk.'No employees of the defendant directly supervised
the lake swimming area.
July 9, 2011, the decedent and his friend, Saulo [De] Sousa,
entered the designated swimming area for the purpose of
swimming out to the trampoline just beyond the buoy line.
When [De] Sousa reached the rope line, he observed the
decedent immediately behind him in the water. The depth of
the water at this location was approximately six feet. As
[De] Sousa lifted the rope line to duck under it, he observed
the decedent diving forward and under the rope. When [De]
Sousa reached the trampoline, he climbed on it, but did not
observe the decedent. After spending a few minutes on the
trampoline, [De] Sousa reentered the water and swam to the
shore. After unsuccessfully attempting to locate the
decedent, employees of the defendant were notified that he
was missing. After a brief search, 911 emergency services
were dispatched, and Bozrah firefighters and rescue personnel
responded to the scene. When notified that the decedent was
last seen in the designated swim area near the buoy line,
Firefighter Colin Laffey entered the water and located the
decedent floating unresponsive just below the surface of the
water just inside the buoy line. Laffey testified that he
located the decedent in an area where the depth of the water
was less than six feet. The decedent was brought to shore,
and [cardiopulmonary resuscitation] was administered. The
decedent was then transported by ambulance to Backus
Hospital, but never regained consciousness and was pronounced
dead. A postmortem autopsy determined the cause of death to
be asphyxia due to submersion. The postmortem examination was
negative for any signs of illness, traumatic injury, or any
preexisting medical condition or disease. A toxicology
examination was negative for the presence of any drugs,
alcohol, or medication.
decedent's drowning was unwitnessed despite the fact that
there were numerous people in the water and on the beach.
Although other members of the decedent's group . . . were
on the beach adjacent to the swimming area, no one saw him in
distress or struggling in the water. He was identified by his
friends as a good or strong swimmer.''
April 12, 2012, the plaintiff initiated the present wrongful
death action against the defendant. The plaintiff filed a
request to amend, and second amended complaint, dated May 4,
2015, and the court granted the request without objection on
May 5, 2015. That amended complaint reduced the
plaintiff's claims to that the defendant was negligent
(1) in failing to provide lifeguards at the lake swimming
area, and (2) in that the defendant knew or should have known
of the dangers associated with encouraging guests to swim to
its recreational flotation devices, yet failed to take
reasonable steps to secure their safety in doing so. At
trial, the defendant moved for a directed verdict at the
close of the plaintiff's presentation of his case,
arguing that the plaintiff had failed to present a prima
facie case of negligence on either claim by failing to
provide evidence of a duty to the decedent, or that the
defendant's actions were the cause in fact or a proximate
cause of the decedent's death. The court reserved
judgment on the motion. After the trial concluded, the jury
returned a verdict in favor of the defendant on the first
claim and for the plaintiff on the second claim. The jury
awarded $229, 155.96 in total economic and noneconomic
damages but found the decedent 49 percent liable and the
defendant 51 percent liable. On May 6, 2015, the court issued
an order accepting the jury's verdict.
defendant then moved to set aside the verdict and for
judgment notwithstanding the verdict on the ground that the
evidence introduced at trial was insufficient to support any
finding of negligence by the defendant that caused in fact or
was a proximate cause of the decedent's drowning.
Additionally, the defendant argued that the plaintiff failed
to prove that it had any duty to require the decedent to wear
a life jacket when he was swimming in the lake. On September
2, 2015, the court granted the defendant's motion for
judgment notwithstanding the verdict, concluding that the
plaintiff had failed to provide any evidence that the
defendant's conduct caused or was a substantial factor in