Frankovitch v. Burton

Decision Date21 July 1981
Citation440 A.2d 254,185 Conn. 14
CourtConnecticut Supreme Court
PartiesMichael FRANKOVITCH v. Robert BURTON, Sr., et al.

David E. Schancupp, New Haven, for appellant (defendant Robert Burton, jr.).

Frank N. Eppinger, Groton, with whom, on the brief, were Peter J. Bartinik, Steven H. Schafer, Matthew Shafner and Stephen C. Embry, Groton, for appellee (plaintiff).


ARTHUR H. HEALEY, Associate Justice.

In this negligence action, the jury returned a verdict in favor of the plaintiff, Michael Frankovitch, and against the defendant, Robert Burton, Jr. 1 Thereafter, the trial court, in a written memorandum of decision, denied the defendant's motion to set aside the verdict and for judgment notwithstanding the verdict. 2 This appeal followed.

In claiming that the court erred in failing to grant his motions, the defendant maintains that the jury could not, as a matter of law, have found on the evidence that he was guilty of negligence which was a proximate cause of the plaintiff's injuries. In making this claim, he not only argues that, under the circumstances, he owed no duty of care to the plaintiff with respect to his fall, but he also urges that, on the evidence, "the jury could not reasonably have found otherwise than that the plaintiff was guilty of negligence which was the sole proximate cause of his fall, and which superseded whatever negligence may have been found to have existed on the part of the defendant." 3 It is also claimed that the court erred in its charge to the jury.

Our review of a trial court's refusal to set aside a jury verdict is limited. "If, on the evidence, the jury could reasonably have decided as they did, we will not find error in the trial court's acceptance of the verdict. Rood v. Russo, 161 Conn. 1, 3, 283 A.2d 220 (1971); Giambartolomei v. Rocky DeCarlo & Sons, 143 Conn. 468, 474, 123 A.2d 760 (1956). A jury verdict should not be distrubed 'unless it is against the evidence or its manifest injustice is so plain as to justify the belief that the jury or some of its members were influenced by ignorance, prejudice, corruption or partiality.' Martino v. Palladino, 143 Conn. 547, 548, 123 A.2d 872 (1956)." Kalleher v. Orr, --- Conn. ---, ---, 438 A.2d 843 (42 Conn.L.J., No. 33, pp.14, 15) (1981). In Kalleher, we also observed: "Upon review, by the trial court on a motion to upset the jury's verdict and in this court, 'the evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable.' Horvath v. Tontini, 126 Conn. 462, 464, 11 A.2d 846 (1940)." Kalleher v. Orr, supra; see also Healy v. White, 173 Conn. 438, 442, 378 A.2d 540 (1977); Dulski v. Appel, 172 Conn. 187, 190, 374 A.2d 177 (1976); LeBlanc v. Bray, 168 Conn. 92, 93, 357 A.2d 926 (1975); Petrizzo v. Commercial Contractors Corporation, 152 Conn. 491, 499, 208 A.2d 748 (1965); Maltbie, Conn.App.Proc. § 189.

While we are aware that where error is claimed in the trial court's refusal to set aside a verdict great weight is to be given to the action of the trial court, and every reasonable presumption should be given in favor of its correctness; see, e.g., Katsetos v. Nolan, 170 Conn. 637, 656, 368 A.2d 172 (1976); Gosselin v. Perry, 166 Conn. 152, 168, 348 A.2d 623 (1974); the evidence before the jury must be sufficient to impose liability on the defendant in order to permit a plaintiff's verdict to stand. Tabshey v. Fiume, 151 Conn. 302, 304, 197 A.2d 338 (1964); see 75 Am.Jur.2d, Trial § 320. A review of what the jury could reasonably have found is appropriate at this point.

The jury could reasonably have found the following facts: The Brookside Inn (Brookside), a country tavern or inn which dispenses alcoholic beverages, is located on route 2A in Preston. In May 1975, the defendant Robert Burton, Jr., operated the Brookside, leasing the premises from his father, Robert Burton, Sr. The Brookside, which faces in a northeasterly direction, is an oblongshaped building with its front wall close to the pavement of the highway. 4 It is a popular spot among young people.

On May 26, 1975, after 11 p.m., the plaintiff Frankovitch, then eighteen years of age, arrived at the Brookside with two male friends. The car in which they arrived was parked in a lot across the highway from the tavern, which lot was used for parking for this establishment. The plaintiff had never been to the Brookside before. He and his companions entered the inn through a door in the front of the building 5 which opens into a hallway. A door on the right side of the hallway opens into a barroom; there is a men's room in the northwesterly corner of this barroom. Farther down the hallway and on the left there is an entrance which opens into a back room or "lounge" with tables and chairs; there is a men's room and a ladies' room in this room, located near the entrance into that room.

After entering the barroom and showing identification to the bartender, the plaintiff and his two companions proceeded to the back room, with beer that was purchased, 6 and sat down. There were no waiters or waitresses that were taking care of the people in the back room. After about thirty minutes, while the plaintiff was still in the back room, the plaintiff "found himself in somewhat urgent straits and felt that he was required to utilize bathroom facilities immediately." 7 He saw that the men's room in the back room was blocked by a juke box which was then playing; the juke box was "right against the door of the men's room" and "blocking the door." 8 Other than a sign indicating "Men's Room," there were no other signs on the door. The plaintiff, after viewing this situation, told one companion that he was going outside because "he had to go to the bathroom."

The plaintiff went down the same hallway and out the same door through which he had entered the Brookside. Upon exiting from the building, he stepped immediately to his right, in a generally easterly direction. He stated at trial that "(i)t looked like there was a small walk there." He continued walking easterly immediately adjacent to the front of the building and behind some shrubs or plantings toward the southeasterly corner of the building. He intended to relieve himself around the corner. The path he followed was wide enough so that he did not brush against the shrubs or front wall as he proceeded to the corner. 9 As he got near the end of the building, he did not remember if he saw a guardpost or a rail, and stated: "(I)t was dark there. There wasn't much lighting." He, however, knew the end of the building was there. He reached the corner of the building, and "one step around the corner" he fell, going through a gap between a state highway guardrail and the building. The gap through which he fell was at a stone retaining wall and was about 1.7 feet wide. He plunged thirteen feet down to the bed of a rocky brook below, sustaining various injuries, the most serious of which was a fracture of the neck of his left femur. The defendant had operated the Brookside for eight years, and was familiar with the brook next to the building and with the wall.

We take up first the claim of the defendant that, as a matter of law, the jury could not have found that the defendant was guilty of negligence which was a proximate cause of the plaintiff's injuries. Under this claim, he argues that, (1) under the circumstances, the defendant owed no duty to the plaintiff with respect to his fall and that, (2) on the evidence, the jury could only reasonably have found that the plaintiff's negligence was the sole proximate cause of his fall, which superseded whatever negligence may have been found on the part of the defendant.

It is clear from the evidence that the plaintiff and his two friends entered the Brookside as business invitees. The defendant does not dispute the plaintiff's invitee status with reference to the interior portion of the premises or the means of ingress and egress thereto leading to the parking lot which is located across route 2A. "The measure of duty owed the plaintiff by the defendant with respect to the condition of the premises was the exercise of reasonable care to have and keep them reasonably safe for the reasonably to be anticipated uses which he would make of them." Ford v. Hotel & Restaurant Employees & Bartenders Union, 155 Conn. 24, 33, 229 A.2d 346 (1967); see Morris v. Granato, 133 Conn. 295, 299, 50 A.2d 416 (1946); Guilford v. Yale University, 128 Conn. 449, 454, 23 A.2d 917 (1942); Knapp v. Connecticut Theatrical Corporation, 122 Conn. 413, 416, 190 A. 291 (1937). The defendant argues, however, that this duty of care does not extend to those portions of the premises which the defendant had not expressly or impliedly invited his business visitors to use, or which he would not reasonably expect his business visitors to use in connection with the conduct of the business on the premises in question. 10

Where there is no duty, there can be no actionable negligence. "Unless some relationship exists between the person injured and the defendant, by which the latter owes a duty to the former, there can be no liability for negligence. McDowell v. Federal Tea Co., 128 Conn. 437, 440, 23 A.2d 512 (1941) and cases cited; Prosser, Torts (4th Ed. 1971) §§ 30, 33, 53; 57 Am.Jur.2d, Negligence, § 36." Neal v. Shiels, Inc., 166 Conn. 3, 12, 347 A.2d 102 (1974). " 'The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. Botticelli v. Winters, 125 Conn. 537, 542, 7 Atl. (2d) 443 (1939). By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary man in the defendant's position, knowing what he knew or should have...

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