215 Conn.App. 139
Conn. App. Ct.2022Background
- On February 7, 2017, Ocasio exited his apartment during sleet/freezing rain, grabbed a porch railing, the railing moved/gave way, and he fell, fracturing his leg.
- Ocasio sued Verdura Construction, LLC for negligence, alleging the railing was rotten/missing screws and that defendant failed to maintain/inspect/repair it (and originally alleged failure to isolate an icy area).
- Defendant pleaded contributory negligence and, before trial, notified it would assert the ongoing storm doctrine as a special defense; evidence showed ice/sleet on the porch and some statements by Ocasio that he slipped on ice.
- The trial court allowed an ongoing storm jury instruction and put two interrogatories first asking whether (1) an ongoing storm existed and (2) the storm’s ice was the proximate cause; the form told the jury to stop and return a defendant’s verdict if they answered yes to (2).
- The jury answered yes to both interrogatories and returned a defendant’s verdict; the trial court denied Ocasio’s motion to set aside the verdict.
- The appellate court reversed, holding the ongoing storm instruction and interrogatories were unsupported, misleading, and harmful, and ordered a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by instructing the jury on the ongoing storm doctrine and submitting interrogatories about it | Ocasio: doctrine inapplicable because claim was defective railing (preexisting condition), not failure to remove ice; instruction unsupported by evidence | Verdura: doctrine relevant given weather evidence and plaintiff’s inconsistent statements that he slipped on ice | Court erred — ongoing storm doctrine concerns duty to clear snow/ice and was irrelevant to plaintiff’s defective-rail theory; instruction unsupported by the evidence |
| Whether the erroneous instruction/interrogatories were harmful | Ocasio: instruction and interrogatories likely confused jury, framed proximate cause as mutually exclusive (storm OR railing), and compelled a defendant verdict if storm was found to be the proximate cause | Verdura: any error harmless or cured by general causation instruction; plaintiff waived objections | Harmful — likely misled jury by prioritizing an inapplicable doctrine, misstating role of proximate cause, and forcing an either/or causation framework; reversal required |
| Whether defendant’s alternative grounds (insufficient evidence of defect, need for expert, lack of notice) preclude reversal | Ocasio: introduced testimony of missing screws/rotted top and long-standing defect; no expert needed for ordinary railing condition; constructive notice established | Verdura: plaintiff failed to prove defect, standard of care, and defendant’s notice | Rejected — plaintiff presented sufficient evidence of defect, expert testimony not required for common-knowledge railing defects, and constructive notice could be inferred from testimony |
| Whether proximate-cause instruction error is a separate reversible error | Ocasio: general proximate-cause instruction flawed and aggravated by ongoing storm charge | Verdura: plaintiff waived objection; overall charge correct | Treated within ongoing-storm analysis — because ongoing-storm instruction misstated causation (‘‘the’’ proximate cause) and confused jury, reversal was required; separate proximate-cause challenge not resolved independently |
Key Cases Cited
- Kraus v. Newton, 211 Conn. 191 (1989) (adopted ongoing storm doctrine; doctrine concerns landowner’s duty to clear snow/ice and allows waiting until storm ends in absence of unusual circumstances)
- Belevich v. Renaissance I, LLC, 207 Conn. App. 119 (2021) (ongoing storm doctrine pertains to duty and is inapplicable where preexisting dangerous condition caused injury)
- Champeau v. Blitzer, 157 Conn. App. 201 (2015) (interrogatories and charge using ‘‘the proximate cause’’ can mislead jury and require reversal if prejudicial)
- Kos v. Lawrence + Memorial Hospital, 334 Conn. 823 (2020) (harmless-error framework for instructional impropriety; consider evidence, other instructions, counsel argument, jury indications)
- Coburn v. Lenox Homes, Inc., 186 Conn. 370 (1982) (recognizes that an injury may have more than one proximate cause)
- Phelps v. Lankes, 74 Conn. App. 597 (2003) (holding that an isolated incorrect proximate-cause phrasing may be harmless when the full charge clarifies standard)
- Way v. Pavent, 179 Conn. 377 (1979) (jurors may rely on common knowledge; expert testimony not required for obvious structural defects)
- Pollack v. Gampel, 163 Conn. 462 (1972) (constructive notice may be proven by showing a defect would have been discovered by reasonable inspection)