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DeCastro v. Odetah Camping Resort, Inc.

Court of Appeals of Connecticut

February 7, 2017

ADELSON LUIZ DECASTRO, ADMINISTRATOR (ESTATE OF JOSE LUIZ DECASTRO), ET AL.
v.
ODETAH CAMPING RESORT, INC.

          Argued November 17, 2016

         Appeal from Superior Court, judicial district of Fairfield, Kamp, J.

          Andrew J. Pianka, for the appellant (named plaintiff).

          Mark R. Cramer, for the appellee (defendant).

          DiPentima, C. J., and Keller and Bear, Js.

          OPINION

          BEAR, J.

         In this wrongful death action, the plaintiff, Adelson Luiz DeCastro, the administrator of the estate of Jose Luiz DeCastro (decedent), [1] 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.

         On 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.

         In its 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.

         ‘‘On 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.

         ‘‘The 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.''

         On 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.

         The 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 ...


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