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Garcia v. Cohen

Court of Appeals of Connecticut

March 12, 2019

USSBASY GARCIA
v.
ROBERT COHEN ET AL.

          Argued January 3

         Procedural History

         Action to recover damages for, inter alia, the defendants' 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and for other relief, brought to the Superior Court in the judicial district of Hartford, where the action was withdrawn in part; thereafter, the matter was tried to the jury before Dubay, J.; verdict for the defendants; subsequently, the court denied the plaintiff's motions to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; thereafter, the court, Dubay, J., issued an articulation of its decision.

          John Serrano, for the appellant (plaintiff).

          Keith S. McCabe, with whom, on the brief, was Allison Reilly-Bombara, for the appellees (defendants).

          Lavine, Prescott and Bishop, Js.

          OPINION

          LAVINE, J.

         The plaintiff, Ussbasy Garcia, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendants, Robert Cohen and Diane N. Cohen. On appeal, the plaintiff claims that the court erred by rejecting her request to charge and failing to instruct the jury that the possessor of real property has a nondelegable duty to maintain the premises. We affirm the judgment of the trial court.

         The record discloses the following facts that the jury reasonably could have found on the basis of the evidence presented at trial. On January 19, 2014, the defendants owned the premises at 390 West Main Street, New Britain, where the plaintiff was a tenant in a second floor apartment. At approximately 11:45 that morning, the plaintiff was carrying a basket of laundry down the rear, exterior stairs of the premises when she fell and sustained serious injuries to her left leg and ankle.

         The plaintiff commenced a defective premises action against the defendants in January, 2016.[1] The plaintiff alleged that her injuries were proximately caused by the defendants' negligence in that they failed to keep the stairs free of dirt and sand; permitted the steps to become pitted, worn, and uneven; and failed to warn of the slippery condition of the stairs. The defendants denied the material allegations of the complaint and alleged certain special defenses in that the plaintiff's injuries were the result of her own negligence.[2] The plaintiff denied the allegations of the special defenses.

         At trial, Robert Cohen testified, among other things, that he owned several properties and that three or four people worked with him to maintain the premises. He hired a contractor to take care of the lawn and remove snow. The plaintiff submitted a request to charge[3] and proposed jury interrogatories.[4] The court declined to use the plaintiff's proposed charge and did not submit the interrogatories to the jury.[5] Following the presentation of evidence, the jury returned a verdict in favor of the defendants. The plaintiff thereafter filed a motion to set aside the verdict on the ground that (1) the verdict was contrary to law in that the court failed to properly charge the jury in accordance with her request to charge, (2) the court failed to submit her proposed jury interrogatories to the jury, and (3) the verdict was against the evidence. The plaintiff also filed a motion for a new trial. The defendants objected to both the plaintiff's motion to set aside the verdict and her motion for a new trial. The court denied the plaintiff's motion to set aside the verdict and her motion for a new trial.

         The plaintiff appealed and thereafter filed a motion for articulation with the trial court. The court granted the motion for articulation and stated: ‘‘The factual and legal basis for the court's not charging on nondelegable duty are set forth in [the] defendants' memorandum [of law] in support of [their] objection to [the] plaintiff's motion for a new trial . . . . The court specifically adopted the legal basis and factual analysis in its ruling. There was no evidence or argument that anyone other than the defendants [were] responsible for the maintenance of the stairway.''

         On appeal, the plaintiff claims that the court erred in refusing to give her proposed charge that the possessor of real property has a nondelegable duty to maintain the premises in a reasonably safe condition for invitees. During oral argument before us, we asked the parties whether the appeal was controlled by the general verdict rule and invited counsel to submit supplemental briefs on the question.[6] We now conclude that review of the plaintiff's appeal is precluded by the general verdict rule. See Curry v. Burns, 225 Conn. 782, 793, 626 A.2d 719 (1993) (general verdict rule applies on appeal to preclude certain claims).

         Our Supreme Court has held that ‘‘the general verdict rule applies to the following five situations: (1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.'' (Emphasis added; internal quotation marks omitted.) Tetreau ...


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