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Klein v. Quinnipiac University

Court of Appeals of Connecticut

October 8, 2019

DANIEL KLEIN
v.
QUINNIPIAC UNIVERSITY

          Argued May 16, 2019

         Procedural History

         Action to recover damages for the defendant's alleged negligence, and for other relief, brought to the Superior Court in the judicial district of New Haven, and tried to the jury before, Wahla, J.; verdict and judgment for the defendant, from which the plaintiff appealed to this court. Affirmed.

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

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

          Lavine, Keller and Bishop, Js.

          OPINION

          LAVINE, J.

         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 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 at all times.[2] There was a sign posted on the guardhouse directing vehicles to check in.[3]

         The plaintiff and Lebov took the road to the right that avoided the guardhouse and rode to the top of the 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 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 and 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]The defendant, however, argues that the general 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.) 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 http://www.jud.ct.-gov/JI/Civil/Civil.pdf (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 . . . .''

         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. 301, 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., 303. This court disagreed and reversed the trial court's judgment. Id. Our Supreme Court then granted certification to appeal. Id., 304. 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 permission or by its express or implied invitation.''[10]Id., 306.

         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 the decedent as a licensee. Id., 306.

         Older case law, however, suggests that implied permission may be sufficient to establish licensee status. For example, in Katsonas v. Sutherland Building & Contracting Co., 104 Conn. 54, 132 A. 553 (1926), which was decided prior to our Supreme Court's adoption of its current licensee definition, stated that ‘‘when a landowner tacitly permits certain acts upon his property, a license to do these acts may be inferred from his failure to object . . . .''

         In an attempt to clarify this ambiguity and determine what proof is permissible to establish licensee status, we turn our attention to the comments of § 330 of the Restatement (First) of Torts, the section from which our Supreme Court adopted the licensee definition. Comment (a) to that section states: ‘‘ ‘Invitation' and ‘permission.' An invitation differs from a permission only in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter; a permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so. It is immaterial whether the consent which creates the license is an invitation originating with the possessor of the land or by a permission given upon request made by the licensee. The important fact is that the entry is by the consent of the possessor and it is immaterial that the suggestion of the visit originates with him or with his licensee.'' 2 Restatement (First), Torts § 330, comment (a), p. 893 (1934).

         Furthermore, comment (b) to § 330 of the Restatement (First) of Torts states: ‘‘ ‘Toleration' and ‘permission.' The word ‘permission' indicates that the possessor's conduct is such as to give others reason to believe that he consents to their entering the land if they desire to do so. A mere failure to object to another's entry may be a sufficient manifestation of consent thereto if the possessor knows of the other's intention to enter and has reason to believe that his objection is likely to be effective in preventing the other from entering. On the other hand, the fact that the possessor knows of the other's intention to enter and does not prevent it may not be of itself a sufficient manifestation of consent and, therefore, is not necessarily permission. A failure to take burdensome and expensive precautions against intrusion manifests an unwillingness to go to the trouble and expense of preventing others from trespassing upon the land and expresses toleration of the practically unavoidable rather than consent to their entry as licensees. Even a failure to post a notice warning the public not to trespass cannot reasonably be construed as an expression of consent to the intrusions of persons who habitually and notoriously disregard such notices.'' (Emphasis added.) Id., comment (b), p. 893-94.

         Additionally, comment (d) to § 330 of the Restatement (First) of Torts states in relevant part: ‘‘License created otherwise than by words. The consent which is necessary to confer a license to enter land, may be expressed by acts other than words. Here again the decisive factor is the interpretation which a reasonable man would put upon the possessor's acts.'' Id., comment (d), p. 894.

         In light of the guidance provided in the comments to § 330 of the Restatement (First) of Torts, and in light of the myriad cases from other jurisdictions recognizing that both express and implied permission is sufficient to render an entrant a licensee; see, e.g., Fitzsimmons v. State, 42 A.D.2d 636, 637, 345 N.Y.S.2d 171 (1973) (‘‘[a] licensee is one who enters the premises for his own benefit without invitation, but with permission, express or implied, of the owner or person in possession''), aff'd, 34 N.Y.2d 739, 313 N.E.2d 790, 357 N.Y.S.2d 498 (1974); we are assuming, arguendo, that express or implied permission, in addition to an express or implied invitation, if established, can render an entrant a licensee.

         In the present case, we must determine if the court properly concluded, as a matter of law, that the evidence did not reasonably support a finding that the plaintiff was a licensee. See Gargano v. Azpiri, supra, 110 Conn.App. 506 (‘‘[w]here . . . the facts essential to the determination of the plaintiff's status are not in dispute, a legal question is presented'' [internal quotation marks omitted]).

         We conclude that the essential facts in the present case are not in dispute, and, thus, the determination of the plaintiff's status is a question of law. The essential facts are as follows: The plaintiff is an avid bicyclist; he entered the private campus of the defendant on his bicycle; he did not stop at the clearly visible guardhouse located near the two main roads accessing the buildings on campus, but took the road that avoided it by riding to the right of it; there were no ‘‘no trespassing'' signs present; there were not gates at every entrance to the campus; the plaintiff was not employed by the defendant at the time of the accident; he was not a student or a parent of a student attending the university; he had no other purpose for being on campus other than his desire to continue his bike ride through the campus, which he had done one previous time a year earlier; and there was no evidence that the defendant knew of the plaintiff's prior bike ride on the campus a year earlier.

         On the basis of the record before us, we have little difficulty concluding that the court properly declined to give the jury a licensee instruction. The evidence in the present case did not reasonably support a conclusion that the plaintiff was a licensee-that is, that he received an express or implied invitation or express or implied permission to enter the campus. Indeed, there was no evidence of the defendant's having explicitly or implicitly expressed a desire that the plaintiff enter its campus, nor was there any evidence of the defendant's having expressed a willingness that he do so. See 2 Restatement (First), supra, § 330, comment (a), p. 893.

         The plaintiff primarily argues that the defendant impliedly gave him consent to ride his bicycle on the campus because there was a lack of ‘‘no trespassing'' signs and no gate or the like at each and every entrance to the campus. The lack of ‘‘no trespassing'' signs or a gate at each entrance, however, without some additional evidence demonstrating implied consent, is insufficient to send the question of whether the plaintiff was a licensee to the jury. See 2 Restatement (First), supra, § 330, comment (b), p. 894 (‘‘[e]ven a failure to post a notice warning the public not to trespass cannot reasonably be construed as an expression of consent''). Put another way, there is insufficient evidence in the record before us demonstrating that the defendant's conduct, either expressly or implicitly, made others believe that the defendant was willing to let them enter the campus if they desired to do so. If we were to adopt the plaintiff's reasoning and permit liability to be imposed in situations such as these, ‘‘no trespassing'' signs will go up, along with fences and gates, barring access to many private properties now used for recreational purposes, creating closed enclaves throughout our state. The societal impact, and concomitant cost, of such a ruling would be significant. See, e.g., Salaman v. Waterbury, supra, 246 Conn. 307 (‘‘A rule requiring a property owner to post warning signs about the dangers inherent in swimming is unreasonable. In Connecticut, a small state, hundreds of miles of shoreline would be exposed to this unreasonable requirement. Property owners who have water on their land are entitled to assume that a reasonable adult would be aware of the risk of drowning in a body of water.'') We, therefore, conclude that the court did not err in declining to instruct the jury on licensee status and its corresponding duty of care.[11]

         Moreover, even if we were to assume that the plaintiff in this case was a licensee, we would be unable to conclude that the evidence supports a finding that the defendant breached any duty to the plaintiff as a licensee. See Salaman v. Waterbury, supra, 246 Conn. 306. ‘‘The duty that a . . . [landowner] owes to a licensee . . . does not ordinarily encompass the responsibility to keep the property in a reasonably safe condition, because the licensee must take the premises as he [or she] finds them. . . . If the licensor actually or constructively knows of the licensee's presence on the premises, however, the licensor must use reasonable care both to refrain from actively subjecting him [or her] to danger and to warn him [or her] of dangerous conditions which the possessor knows of but which he [or she] cannot reasonably assume that the licensee knows of or by reasonable use of his [or her] faculties would observe.'' (Citations omitted; internal quotation marks omitted.) Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992).

         The plaintiff would have been required to establish that the defendant breached the duty owed to a licensee. On the basis of our review of the evidence, no jury reasonably could have concluded that the defendant breached that duty even if one assumes the plaintiff was a licensee. In particular, there was no claim or evidence to support a finding that the defendant actively subjected the plaintiff to danger. Thus, the defendant's duty to the plaintiff, had he in fact been a licensee, would be to ‘‘warn him [or her] of dangerous conditions which the possessor knows of but which he [or she] cannot reasonably assume that the licensee knows of or by reasonable use of his [or her] faculties would observe.'' (Internal quotation marks omitted.) Id., 329.

         We are simply unwilling to conclude that on a sunny and clear day, a plainly visible bright yellow speed bump located on a paved road, even if on a hill, can be considered a hidden, dangerous condition. In fact, there was testimony that speed bumps ‘‘are a known hazard to bicyclists.'' Moreover, there was no evidence before the jury demonstrating that the defendant was aware of this alleged defect. In particular, there was no evidence that the defendant was aware that the way that the speed bump was constructed rendered the premises unsafe. Here, under the circumstances of this case, the plaintiff should have been aware of the dangers of riding his bicycle over a speed bump as he proceeded down the hill with no intention of obeying the stop sign that lay just beyond the speed bumps. See, e.g., Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 336 n.12, 885 A.2d 734 (2005) (‘‘[t]he risks inherent in each type of recreational activity will necessarily vary, and it is common knowledge that some recreational activities are inherently more dangerous than others''); see also Rivera v. Glen Oaks Village Owners, Inc., 41 A.D.3d 817, 820, 839 N.Y.S.2d 183 (2007) (‘‘[b]y engaging in a sport or recreational activity, a participant consents to those commonly-appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation'') Even if we had assumed the plaintiff was a licensee, we would conclude on the facts of the present case that the defendant was not required to warn the plaintiff of the obvious dangers of his actions.

         Lastly, we conclude that the general verdict rule applies to defeat the plaintiff's remaining claim that the court improperly permitted Officer Melendez to estimate the speed of the plaintiff's bicycle. ‘‘[The general verdict] rule operates . . . to insulate a verdict that may have been reached under a cloud of error, but which also could have been reached by an untainted route.'' Dowling v. Finley Associates, Inc., supra, 248 Conn. 376. ‘‘[It] applies whenever a verdict for one party could reasonably have been rendered on one or more distinct causes of action or distinct defenses. . . . [A] defendant['s] denial of negligence and . . . allegations of contributory negligence constitute two discrete defenses, either of which could [support a] jury's general verdict. . . . The verdict [could be] predicated on the defendant['s] freedom from negligence or on the plaintiff's comparatively greater negligence. . . . In light of [a] plaintiff's failure to request interrogatories to ascertain the basis of the jury's verdict, [the verdict] must [be] uph[eld] . . . under the general verdict rule, if either defense is legally supportable. . . . Further, if the trial court's instructions to the jury are shown to be proper and adequate as to any of the defenses raised, the general verdict must stand, regardless of error, if any, in the charge as to any other defense.''[12] (Citations omitted.) Staudinger v. Barrett, 208 Conn. 94, 99-100, 544 A.2d 164 (1988).

         Because the general verdict rule applies, we must presume that the jury found every issue in favor of the defendant. We, therefore, conclude that the jury found that the defendant was not negligent. The plaintiff's remaining evidentiary claim, that the court improperly permitted Officer Melendez to estimate the speed of the plaintiff's bicycle, relates only to the contributory negligence special defense. As such, it is precluded by the general verdict rule; see Segale v. O'Connor, 91 Conn.App. 674, 680, 881 A.2d 1048 (2005); and does not require further discussion.

         The judgment is affirmed.

          In this opinion KELLER, J., concurred.

          BISHOP, J., dissenting.

         In this premises liability action involving serious physical injuries, the plaintiff, Daniel Klein, asserts two claims on appeal: first, that the trial court abused its discretion by permitting a witness to give opinion testimony without adequate foundation, and second, that the court improperly refused to instruct the jury on the definition of and duties owed to a licensee upon a possessor's land. The majority concludes that the court properly refused to give such instruction. Alternatively, the majority concludes that, even if the court's instruction was incorrect, the error did not harm the plaintiff. The majority therefore finds no reversible error in the court's instruction to the jury and, consequently, concludes that the plaintiff's evidentiary claim is barred by application of the general verdict rule. I respectfully disagree.

         A pivotal issue at trial was the legal status of the plaintiff on the property of the defendant, Quinnipiac University. The plaintiff asserted that he was there with the permission of the defendant; the defendant claimed, in response, that the plaintiff was a mere trespasser. The trial court determined, as a matter of law, that the plaintiff was a trespasser and, therefore, declined to instruct the jury with respect to the duties owed to licensees. I conclude that this was reversible error. In my view, there was adequate evidence adduced at trial for the jury to conclude that the plaintiff had entered the defendant's property with the defendant's implied permission, and, accordingly, the trial court erred in refusing to give the requested licensee instruction.[1] In doing so, the court, in essence, directed a verdict against the plaintiff, thereby denying him the opportunity to have his claims fairly decided by a jury of his peers. In my view, this instructional error necessarily prejudiced the plaintiff and, therefore, requires reversal and an order remanding the matter for a new trial. Because the issue of the admissibility of the opinion testimony regarding the plaintiff's speed may arise on retrial, I would also reach the plaintiff's evidentiary claim and conclude that this lay opinion testimony was improperly admitted because the witness rendering the opinion lacked an adequate factual foundation.

         The underlying facts, which the jury reasonably could have found, are, in the main, undisputed, with one exception regarding the purpose of a guardhouse on the defendant's premises. On July 30, 2014, the plaintiff and a friend, Richard Lebov, both experienced bicyclists, went for an extended bicycle ride that ended on the defendant's York Hill campus in Hamden (campus), which, being situated on a hill, provides a nice view of New Haven and Long Island Sound.[2] The plaintiff and Lebov entered the campus via an access road from Sherman Avenue and proceeded onto the campus. At the time in question, this entrance was not gated, and there were no ‘‘no trespassing'' signs posted anywhere around the campus or any other signs indicating that access to the campus was restricted in any way. In short, the circumstances were such as to lead a reasonable person approaching the entrance to the defendant's campus from Sherman Avenue to believe that the premises were open to the public without restriction.

         The access road from Sherman Avenue terminates well into the interior of the campus, where it intersects with another campus road At this point, lane use arrows in the right travel lane of the access road indicate that traffic may either proceed straight or turn right. Both routes lead to the top of the campus, where several dormitories and a student center are located. The plaintiff and Lebov turned right at this intersection to continue their ride to the top of the campus.

         Across from the intersection at which the plaintiff and Lebov turned right is a road that leads directly to the dormitory area of the campus. Situated at the entrance to this road, in the median, is a guardhouse staffed at all times by a public safety officer. The guardhouse is flanked on both sides by two yellow painted speed bumps. A sign posted on the front of the guardhouse states that ‘‘all vehicles must stop and be registered.'' It is noteworthy that the sign at the guardhouse was directed only to vehicles and that, at the time in question, there were no signs posted requiring that users of the roadway coming from the Sherman Avenue entrance proceed across the intersection to the guardhouse instead of turning right as did the plaintiff and Lebov.

         The route to the right of the intersection, taken by the plaintiff and Lebov, leads past a wind farm before connecting with the other end of the guardhouse road at the top of the hill. As with the Sherman Avenue entrance and the access road, there were no signs restricting traffic from taking the road leading past the wind farm. Nor were there any signs posted indicating that this road was one-way or that bicyclists or pedestrians using the road were going against the flow of traffic. Although there was a vertical swing arm gate located at some point along this road, the arm was in the upright position at the time in question. The open position of the gate's arm certainly does not suggest that travelers, be they students, staff, or visitors on that road, were unwelcome.

         When the plaintiff and Lebov reached the intersection and turned right along the road up the hill toward the wind farm, [3] the safety officer on duty, Juan Melendez, observed them but remained inside the guardhouse. Also, he did not attempt to alert the other officer on duty to their presence. This inaction by Melendez supports the plaintiff's view that it was not part of Melendez' duty to screen, generally, visitors to the campus who did not seek access via the guarded roadway to the dormitories. Indeed, when the plaintiff and Lebov had taken a bicycle ride along a similar route on the campus the previous year, no one had attempted to stop them, and there had been nothing to suggest in any manner that their presence had been unwelcome.[4]

         After a minute or two, Melendez exited the guardhouse to survey the area, as he was expecting to see the plaintiff and Lebov come back. While standing in front of the guardhouse surveying the area, Melendez ‘‘heard a noise'' and ‘‘instinctively'' turned to his right, whereupon he observed the front wheel of the plaintiff's bicycle hit the second speed bump, causing the plaintiff to be thrown into the air over his handlebars and to hit the ground. The plaintiff sustained serious physical injuries as a result.[5]

         The plaintiff commenced the present action by service of process on the defendant on March 11, 2015. In the operative second amended complaint filed on October 24, 2017, the plaintiff alleged that the bottom most speed bump in the egress lane of the guardhouse road was in a dangerous, defective, and unsafe condition and that he had been injured as a result of the defendant's negligence in allowing this dangerous condition to exist, failing to inspect the speed bump to ensure that it was in a reasonably safe condition, failing to remedy the condition, and failing to warn of the condition.[6] The defendant denied the plaintiff's allegation of negligence and raised the special defense of contributory negligence. The matter was tried to a jury beginning on April 16, 2018, but no interrogatories were submitted to it.

         At trial, Melendez testified that he had not seen the plaintiff coming down the hill prior to the plaintiff's collision with the speed bump. Nevertheless, he was permitted to testify, over the objection of the plaintiff's counsel, as to his opinion that the plaintiff's speed going down the hill was ten miles per hour, conservatively. This estimate was in line with that provided by the defendant's expert witness, Christopher Juliano, who opined that the plaintiff had been traveling at approximately 9.8 miles per hour at the time the accident occurred.

         Following the conclusion of the defendant's casein-chief on April 19, 2018, the defendant moved for a directed verdict. During argument on the defendant's motion, the defendant's counsel argued that the only conclusion that could be reached on the basis of the evidence presented was that the plaintiff had been a trespasser and that, consequently, the only duty that the defendant owed was to refrain from intentionally or recklessly injuring the plaintiff. The defendant's counsel, therefore, contended that, because the plaintiff did not allege or prove that the defendant had intention- ally or recklessly injured him, he could not prove negligence.

         The plaintiff's counsel countered that there was ample evidence to support a conclusion that the plaintiff had been a licensee, which he defined as ‘‘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 expressed or implied consent.'' More specifically, the plaintiff's counsel argued that the evidence demonstrated that the plaintiff had had the implied consent of the defendant to be on the campus. In support of this argument, the plaintiff's counsel pointed to the following evidence: the lack of any ‘‘no trespassing'' signs, the lack of any signs restricting access to the campus to any particular categories of people, the lack of any signs directing visitors to stop at the guardhouse to sign in, the arrows on the street pointing in directions away from the guardhouse, the upright position of the arm of the gate along the road leading past the wind farm, Melendez' testimony that visitors without any affiliation with the defendant were generally permitted unless they appeared suspicious, and the lack of any gate at the entrance to the campus.[7]

         Although the plaintiff had been proceeding under a theory of implied consent, the court, without explanation, proceeded to summarize the law concerning implied invitations. Citing the second edition of American Jurisprudence, the court stated: ‘‘An invitation may be implied from dedication, customary use, or enticement, allurement, or inducement to enter [or] manifested by an arrangement of the premises or the conduct of the owner or occupant . . . .'' See 62 Am. Jur. 2d 464, Premises Liability § 92 (2018). The court went on to note that this was consistent with Connecticut case law indicating that, for the plaintiff to constitute an invitee, ‘‘it must appear that [the plaintiff] was expressly or impliedly invited to use the defendant's premises, '' which, according to the court, ‘‘[was] not the case here.'' Nevertheless, the court deferred ruling on the defendant's motion for a directed verdict and immediately moved on to a charge conference.

         During the charge conference, and in spite of the plaintiff's unequivocal statement that he was claiming to have been a licensee and his explicit disavowal of any claim of invitee status, the court framed the issue regarding the appropriate jury charge in terms of ‘‘whether there was an implied invitation, '' citing the principles it had previously noted in the context of the defendant's motion for a directed verdict. (Emphasis added.) The court concluded that, ‘‘considering [those principles], the charge . . . [that] is going to be giv[en] is [the] trespasser charge only . . . .''

         Following trial, the jury returned a general verdict in favor of the defendant, and the court rendered judgment accordingly. This appeal followed.

         I first address the plaintiff's claim that the trial court erred in refusing to instruct the jury regarding the definition of a licensee and the duties owed to a licensee by a possessor of land. The plaintiff argues that the trial court improperly conflated the concepts of implied invitation and implied consent and that there was sufficient evidence to support a finding that he had entered the campus with the defendant's implied consent. The plaintiff, therefore, contends that it was an abuse of discretion for the trial court to refuse to instruct the jury on the definition of and the duties owed to a licensee. The plaintiff further argues that the court's error was harmful because it was tantamount to directing a verdict in favor of the defendant. More specifically, the plaintiff contends that, without a licensee instruction, the jury was left with no choice but to find that he was a trespasser to whom the defendant owed a duty only to refrain from intentionally or recklessly injuring the plaintiff. I agree with the plaintiff.

         ‘‘A licensee is a person who is privileged to enter or remain upon land by virtue of the possessor's consent . . . .'' (Internal quotation marks omitted.) Laube v. Stevenson, 137 Conn. 469, 473, 78 A.2d 693 (1951), quoting 2 Restatement (First), Torts § 330 (1934). Although such consent may be given by invitation-i.e., ‘‘conduct [that] justifies others in believing that the possessor desires them to enter the land''; (emphasis added) 2 Restatement (Second), Torts § 332, comment (b) (1965); mere ‘‘permission''-i.e., ‘‘conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so''; (emphasis added) id.; will suffice. See Corcoran v. Jacovino, 161 Conn. 462, 466, 290 A.2d 225 (1971) (‘‘[m]ere permission, as distinguished from invitation, is sufficient to make [a] visitor a licensee''). As the majority correctly acknowledges, the great weight of authority indicates that such invitation or permission may be given either expressly or implicitly.

         In the present case, there was no evidence adduced at trial of the defendant's having explicitly or implicitly expressed a desire that the plaintiff enter its campus, nor was there any evidence of the defendant's having explicitly expressed a willingness that the plaintiff enter. Accordingly, I agree with the majority that the jury reasonably could not have found the plaintiff to be a licensee by virtue of any express or implied invitation or by an express grant of permission. I disagree, however, that there was insufficient evidence to support a finding that the defendant had tacitly permitted the plaintiff to enter the campus.

         As the majority notes, our appellate case law provides little insight as to the proof necessary to establish licensee status by implied permission. I therefore agree that, in such circumstances, it is appropriate to look to the Restatement for guidance. The commentary to § 330 of the Restatement (First) of Torts provides that, ‘‘[a]s in all cases in which one person's consent is important as affecting the legal relations between him and another, it is the manifestation of consent which is decisive and not the state of mind which the possessor intended to express.'' (Emphasis added.) 2 Restatement (First), supra, comment (c), p. 894. In other words, ‘‘the decisive factor is the interpretation which a reasonable man would put upon the possessor's acts''; (emphasis added) id., comment (d), p. 894; not the possessor's unexpressed intentions or policies.

         ‘‘In determining whether a particular course of action is sufficient to manifest a consent to enter the land, regard must be had to all the surrounding circumstances.'' Id. For example, ‘‘[i]f a railway company prepares a paved or boarded path between the two platforms of its station, it may or may not give passengers reason to believe that the pathway is prepared for their use. If there is no other means of communication provided between the two platforms, a passenger may reasonably believe that the path is meant for his use. On the other hand, if there is an overhead bridge or a subway plainly visible, even though the pathway is not blocked by a fence or railing, the passenger might not be justified in regarding the path as prepared for him.'' Id., pp. 894-95.

         ‘‘In determining this regard is to be had to customs prevailing in the community. The well-established usages of a civilized . . . community entitle everyone to assume that a possessor of land is willing to permit them to enter for certain purposes until a particular possessor expresses unwillingness to admit them. . . . [For instance] if there be a local custom for possessors of land to permit others to enter it for particular purposes, residents in that locality and others knowing of the custom are justified in regarding a particular possessor as conversant with it and, therefore, in construing his neglect to express his desire not to receive them as a sufficient manifestation of a willingness to admit them.''[8] (Internal quotation marks omitted.) Id., p. 895.

         Applying these principles in the context of the case at hand, it is plain that there was sufficient evidence adduced at trial to reasonably support a finding that the plaintiff had been a licensee by virtue of the defendant's implied permission. As noted, at the time in question, the Sherman Avenue entrance to the campus was not gated, and there were no ‘‘no trespassing'' signs posted at the campus entrance or any signs signifying that presence on the campus was restricted in any manner or to any category of individuals. Although one of the roads leading to the dormitories at the top of the campus was guarded by a guardhouse, the other route to the top of the campus taken by the plaintiff was not guarded, and the lane use arrows on the access road from Sherman Avenue suggested that entrants could utilize this other route rather than the guarded road. Additionally, there was no evidence of any signs along the route taken by the plaintiff restricting access to the top of the campus to certain categories of people. Moreover, Melendez' testimony that he took no action to limit or even question the plaintiff upon seeing him turn right at the intersection, or to seek assistance from the other safety officer on duty elsewhere on the campus, supports the conclusion that the plaintiff's presence on the campus was permitted. Finally, given the plaintiff's testimony that he had taken the same route to the top of the campus the previous year without any interference from the defendant's agents, the jury reasonably could have concluded that the prevailing custom on the campus was to permit individuals not associated with the defendant to enter the campus and to ride, without restriction or interference, to the top of the campus to enjoy the vista it affords.[9] Given this evidence, I have little difficulty in concluding that a properly instructed jury could have determined that a reasonable person in the plaintiff's position justifiably would have inferred from the surrounding circumstances that the defendant was willing to allow the plaintiff to enter the campus and to proceed along the route he took leading past the wind farm to the top of the campus.

         The majority's conclusion to the contrary is, in my view, flawed. Preliminarily, I note that the majority appears to accept that, in some circumstances, the lack of gates and ‘‘no trespassing'' signs, without more, may be sufficient to establish implied permission. See 2 Restatement (First), supra, § 330, comment (b), p. 893 (‘‘[a] mere failure to object to another's entry may be a sufficient manifestation of consent thereto if the possessor knows of the other's intention to enter and has reason to believe that his objection is likely to be effective in preventing the other from entering'').[10] Thus, the majority's position appears to be that there are additional circumstances in the present case that render the lack of such signs and gates insufficient to establish the plaintiff's status as a licensee. Although the majority does not state explicitly what these additional circumstances are, it appears to rely heavily, if not exclusively, on the fact that the plaintiff did not stop at the guardhouse that straddled the road leading directly to the dormitories at the top of the campus and, instead, took the route to the top of the campus that leads past the wind farm. Ostensibly, the majority interprets the presence of the guardhouse as a manifestation of the defendant's unwillingness to permit persons who are not affiliated with the defendant and have not checked in at the guardhouse to enter into the top of the campus. I respectfully disagree with this interpretation.

         Although there was a sign posted on the front of the guardhouse stating that ‘‘all vehicles must stop and be registered, '' there were no signs stating that people coming into the campus by other means-for example, by foot or on bicycle-must also check in at the guardhouse before going to the top of the campus. Nor were there any signs requiring that entrants to the top of the campus utilize the guardhouse road rather than the road that leads past the wind farm. Given these circumstances, a reasonable person in the plaintiff's position may well have concluded that the only apparent purpose of the guardhouse was to limit vehicular access to the road that it guarded and that the presence of the guardhouse therefore had no bearing on the defendant's willingness to allow individuals without vehicles to proceed along the route traveled by the plaintiff to the top of the campus.[11]

         I also respectfully disagree with the majority's speculative assertion that, if this court were to conclude that the plaintiff in this case was a licensee, it essentially would require much, if not all, private property to be fenced, gated, and covered with ‘‘no trespassing'' signs in order to avoid conferring licensee status on mere trespassers.[12] As previously noted, whether an entrant constitutes a licensee is a fact specific inquiry that requires due consideration of all of the surrounding circumstances. See 2 Restatement (First), supra, § 330, comment (c). Thus, my conclusion that the lack of ‘‘no trespassing'' signs and gates was sufficient to warrant a licensee instruction under the particular factual circumstances of the present case cannot reasonably be construed as an indication that, in all premises liability cases, the lack of such signs and gates renders an entrant a licensee as a matter of law.

         In sum, I conclude that the trial court erred in refusing to instruct the jury on the definition of and the duties owed to licensees. As the majority correctly notes, however, ‘‘before a party is entitled to a new trial [due to an error in the trial court's jury instructions] . . . he or she has the burden of demonstrating that the error was harmful.'' (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 328 Conn. 726, 749, 183 A.3d 611 (2018). In the present case, the plaintiff argues, in essence, that the court's refusal to provide the requested licensee instruction was harmful because ‘‘[i]t was tantamount to directing a verdict for the defendant . . . .'' I agree.

         The record reveals that there was no evidence presented at trial to indicate that the defendant had intentionally injured the plaintiff or that it had engaged in wilful, wanton, or reckless conduct so as to make it liable for injuries to a trespasser. See Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 558, 707 A.2d 15 (1998) (‘‘a possessor of land is under no duty to keep his or her land reasonably safe for an adult trespasser, but has the duty only to refrain from causing injury to a trespasser intentionally, or by willful, wanton or reckless conduct'' [footnote omitted; internal quotation marks omitted]). Consequently, the trial court, by improperly instructing the jury only with respect to the duties owed to trespassers, effectively directed a verdict in the defendant's favor.[13] In my view, this necessarily harmed the plaintiff because it deprived him of a fair opportunity to have the jury carry out its constitutional fact-finding function and determine his claims on the basis of correct legal principles.[14] See Tryon v. North Branford, 58 Conn.App. 702, 716, 755 A.2d 317 (2000) (whether there was breach of duty of care is question of fact to be decided by jury after considering credibility and weight to be accorded evidence). I respectfully disagree with the majority's conclusion to the contrary.

         The majority also asserts that there was insufficient evidence presented at trial to support a finding that the defendant breached any duty owed to the plaintiff as a licensee and that, therefore, any error in failing to provide the requested licensee instruction was harmless. As the majority correctly notes, a land possessor who actually or constructively knows of a licensee's presence on the premises must use reasonable care to warn the licensee of dangerous conditions on the land that the possessor knows of but that the possessor cannot reasonably assume the licensee knows of or by reasonable use of his or her faculties would observe. See Morin v.Bell Court Condominium Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992). The majority notes that speed bumps in general are a known hazard to bicyclists and that the particular ...


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