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Klein v. Quinnipiac University

Appellate Court of Connecticut

October 8, 2019

Daniel KLEIN

         Argued May 16, 2019

         Appeal from the Superior Court in the judicial district of New Haven, and tried to the jury before, Wahla, J.

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[Copyrighted Material Omitted]

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          Steven D. Jacobs, with whom, on the brief, was Richard L. Jacobs, New Haven, for the appellant (plaintiff).

         James E. Wildes, for the appellee (defendant).

         Lavine, Keller and Bishop, Js.


         LAVINE, J.

         [193 Conn.App. 470] In this premises liability action, the plaintiff, Daniel Klein, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant, Quinnipiac University. On appeal, the plaintiff claims that the trial court erred by (1) permitting [193 Conn.App. 471] a witness to testify about the estimated speed of the plaintiff’s bicycle at the time of his collision, and (2) refusing to give a jury instruction on the definition of, and the duty owed to, a licensee. For the reasons discussed herein, we affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. The weather was clear and sunny on July 30, 2014, and the plaintiff, who was then seventy-one years old, and his friend, Richard Lebov, decided to take a bike ride through the defendant’s campus because the "hill" offered a "difficult climb" that was "fun" and "a challenge." The two had ridden their bicycles there the year before. They were not students at the defendant, employed at the defendant, invited onto the campus, or planning to meet anyone on the campus.[1] The campus was not gated, and there were no "no trespassing" signs. Upon entering the campus, there were alternative routes available, one of which would pass by a guardhouse where a public safety officer was stationed [193 Conn.App. 472] at all times.[2] There was a

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sign posted on the guardhouse directing vehicles to check in.[3]

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          [193 Conn.App. 473] The plaintiff and Lebov took the road to the right that avoided the guardhouse and rode to the top of the [193 Conn.App. 474] hill.[4] They rode down the hill on a road that passes near the guardhouse. At the end of the road, there were two bright yellow speed bumps and a stop sign. There was nothing that obstructed the plaintiff’s, or Lebov’s, view of the speed bumps and the stop sign— especially as it was a clear and sunny day. Both of them saw the bright yellow speed bumps clearly.[5]

         At trial, the plaintiff and Lebov each testified that they had no intention of stopping at the stop sign.[6] They [193 Conn.App. 475] both rode over the first speed bump without incident. When the plaintiff’s bicycle made contact with the second speed bump, he flew over the top of his handlebars, hit the ground, and sustained serious injuries. The officer stationed at the guardhouse, Juan Melendez, called dispatch, and the plaintiff received medical assistance.

         Officer Melendez had seen the plaintiff and Lebov ride up the hill and had left the guardhouse to survey the area because he thought that they were still in the general area.[7] He turned when he heard a noise

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and [193 Conn.App. 476] saw the tire of the plaintiff’s bicycle hit the second speed bump and the plaintiff thrown over the handlebars. Officer Melendez was permitted, over objection, to testify that the plaintiff’s speed was "conservatively ten miles an hour" or faster because of the hill’s incline.

          The plaintiff brought the present action, seeking monetary damages, claiming that the speed bump was dangerous, defective, and unsafe and that his injuries resulted from the defendant’s negligence. The defendant denied any negligence and raised the special defense that the plaintiff was contributorily negligent. The case was tried to a jury, but no interrogatories were submitted to it. Following the trial, the jury returned a general verdict in favor of the defendant, and the court rendered judgment accordingly. This appeal followed.

         The plaintiff first challenges the court’s evidentiary ruling permitting Officer Melendez to estimate the speed of the plaintiff’s bicycle. Second, he claims that the court improperly refused to instruct the jury that his status could have been that of a licensee and erred by charging the jury only on his status as a trespasser.[8] [193 Conn.App. 477] The defendant, however, argues that the general

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verdict rule applies to this case and precludes a review of the plaintiff’s contentions on appeal. The plaintiff argues that although the general verdict rule might insulate the verdict from attack in other circumstances, it does not do so in the present case because the improper jury charge affected both the negligence claim and the contributory negligence special defense. We view the plaintiff’s second claim of error with respect to the jury charge to be without merit, and we conclude that the general verdict rule applies to defeat the plaintiff’s first claim. We address the plaintiff’s second claim first.

          The essential issue in this case is whether the plaintiff, an experienced bicyclist, who was injured while riding his bicycle on the York Hill campus of the defendant, a private university, was entitled to have the jury instructed on the definition of, and the duty owed to, a licensee. The trial court decided that the issue was one of law, that the evidence did not support the claim that the plaintiff was a licensee, and that he was not entitled to such a jury charge. On appeal, the plaintiff claims that it was reversible error for the court to take the issue away from the jury, which returned a verdict in favor of the defendant, because, in his view, there was evidence that the defendant implicitly consented to his presence.

          Connecticut’s premises liability law has long provided that "[t]he status of an entrant on another’s land, be it trespasser, licensee or invitee, determines the duty that is owed to the entrant while he or she is on a landowner’s property." (Internal quotation marks omitted.) [193 Conn.App. 478] Cuozzo v. Orange, 178 Conn.App. 647, 655, 176 A.3d 586 (2017), cert. denied, 328 Conn. 906, 177 A.3d 1159 (2018). "Ordinarily, the status of one who sustains injury while upon the property of another is a question of fact." (Internal quotation marks omitted.) Moonan v. Clark Wellpoint Corp., 159 Conn. 178, 185, 268 A.2d 384 (1970); see also Roberts v. Rosenblatt, 146 Conn. 110, 112, 148 A.2d 142 (1959). "Where, however, the facts essential to the determination of the plaintiff’s status are not in dispute, a legal question is presented." (Internal quotation marks omitted.) Gargano v. Azpiri, 110 Conn.App. 502, 506, 955 A.2d 593 (2008); see also Brown v. Robishaw, 282 Conn. 628, 633, 922 A.2d 1086 (2007) ("[i]f ... the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury" [internal quotation marks omitted] ).

         The plaintiff argues that he asked the court to charge the jury on the definition of and the duty owed to a licensee. He cites in his appellate brief to a proposed jury instruction that states: "A licensee is a person who is privileged to enter or remain on land only by virtue of the possessor’s consent, that is, with the possessor’s permission or with the possessor’s express or implied consent ." (Emphasis in original.) See Connecticut Civil Jury Instructions 3.9-3, available at (last visited October 3, 2019).[9] He argues that the "evidence reasonably supported a finding that [he], while on the defendant’s property on July 30, 2014, was there, if not with the possessor’s express consent, then with its implied consent ...."

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          [193 Conn.App. 479] While the civil jury instruction cited to by the plaintiff contains the phrases "express consent" and "implied consent," those precise phrases do not appear in our case law discussing the classification of someone entering onto someone else’s land. Rather, our Supreme Court, guided by § 330 of the Restatement (First) of Torts, has defined a licensee as "a person who is privileged to enter or remain upon land by virtue of the possessor’s consent, whether given by invitation or permission ." (Emphasis added; internal quotation marks omitted.) Laube v. Stevenson, 137 Conn. 469, 473, 78 A.2d 693 (1951); see also Salaman v. Waterbury, 246 Conn. 298, 305, 717 A.2d 161 (1998) (same).

          Although our Supreme Court has made clear that licensee status can be established by demonstrating that the possessor of the land gave someone permission or an invitation to enter the property, only a few cases following our Supreme Court’s adoption of the licensee definition discuss such status, and they shed little light on precisely what a plaintiff entrant is required to show in order to establish that it received the requisite consent.

         For example, in Salaman v. Waterbury, supra, 246 Conn. at 301, 717 A.2d 161, an administrator of a swimmer’s estate brought an action against the defendant city for premises liability negligence, after the swimmer drowned while swimming across a reservoir owned by the city. The jury returned a verdict in favor of the plaintiff, but the court ultimately granted the city’s motion to set aside the verdict and for judgment notwithstanding the verdict, concluding that there was insufficient evidence to impose either trespasser or licensee liability. Id., at 303, 717 A.2d 161. This court disagreed and reversed the trial court’s judgment. Id. Our Supreme Court then granted certification to appeal. Id., at 304, 717 A.2d 161. After defining "licensee," the court went on to note that "[i]n order to prove that the decedent was a licensee, the plaintiff was required to prove that the decedent was on the city’s land with its [193 Conn.App. 480] permission or by its express or implied invitation."[10] Id., at 306, 717 A.2d 161.

         In construing this statement by our Supreme Court, it is unclear whether licensee status can also be established by implied permission. One could argue that the absence of the phrase "express or implied" before the word "permission" suggests that the court intended to preclude proof of licensee status by implied permission. One could also argue that our Supreme Court’s use of the phrase "implied invitation" was intended to be interchangeable with "implied permission." The court in Salaman, however, did not reach the issue of whether the swimmer was in fact a licensee or provide any further analysis on his status. The court concluded that it need not examine the record to determine if there was some evidence from which the jury reasonably might have concluded that the decedent was a licensee because, even if it assumed that the decedent was a licensee, the evidence did not support a finding that the city breached any duty to

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          the decedent as a licensee. Id, ...

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