Kraus v. Newton
| Decision Date | 16 May 1989 |
| Docket Number | No. 13444,13444 |
| Parties | Theodore KRAUS v. Irene NEWTON. |
| Court | Connecticut Supreme Court |
Herbert Watstein, with whom, on the brief, was Julius Watstein, Bristol, for appellant (plaintiff).
William J. Tracy, Jr., with whom, on the brief, was F. Patrick O'Sullivan, Bristol, for appellee (defendant).
Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, GLASS and SANTANIELLO, JJ.
This case is an appeal from the decision of the Appellate Court in Kraus v. Newton, 14 Conn.App. 561, 542 A.2d 1163, cert. granted, 208 Conn. 815, 546 A.2d 282 (1988). We granted certification to review the judgment of the Appellate Court limited to two issues: (1) whether the trial court's failure to allow a statement by the defendant to be marked as an exhibit for identification was harmless error, and (2) whether there was error in the jury charge regarding the defendant's duty of care.
The underlying facts were set forth in Kraus v. Newton, supra, and we summarize those pertinent to the issues in this appeal. On the morning of January 4, 1982, the plaintiff, a meter reader employed by Northeast Utilities, went to premises owned by the defendant in Bristol to read the meter. Freezing rain had begun to fall the previous evening and persisted at the time of the plaintiff's arrival. The stairs and the handrail of the defendant's premises were covered with ice. Upon descending the stairs, the plaintiff slipped and fell, suffering injuries.
The plaintiff brought an action in negligence against the defendant. At trial, the defendant, who was called as a witness by the plaintiff, testified that she did not place sand on the stairway, despite her knowledge of the storm, her proximity to the premises, which she rented to others, and her knowledge that a meter reader was expected on or about the first of each month.
The defendant further testified that four years prior to trial she had signed a statement regarding the plaintiff's fall. The trial court denied both the plaintiff's request for production of the statement and his request to mark the statement for identification.
The jury returned a verdict for the defendant following a charge instructing it that "the rule of law is that an owner may await the end of a freezing rain or sleet storm and a reasonable time thereafter before removing ice and snow from its outside entrance walks, platforms, and steps." 1 Although the trial court denied a motion by the plaintiff to set aside the jury verdict, its memorandum of decision addressing that motion acknowledged that the court had erred by failing to mark the defendant's statement for identification. The trial court, however, had ordered the defendant to produce the statement at some time following the completion of the trial, marked the statement as a court exhibit and attached the statement to its memorandum of decision. After a review of the statement, the trial court found that any error in failing to allow the statement to be marked for identification was harmless.
The plaintiff argued to the Appellate Court that the failure to mark the defendant's statement during trial prejudiced the plaintiff because it prevented him from offering the statement as a full exhibit. The Appellate Court recognized that a Kraus v. Newton, supra, 14 Conn.App. at 564, 542 A.2d 1163. The purpose of marking an exhibit for identification is to preserve it as part of the record and to provide an appellate court with a basis for review. State v. Onofrio, supra. While the plaintiff in the present case did not have possession or control over the defendant's statement, the record indicates that he requested that the statement be marked for identification and that he intended to offer the statement as a full exhibit.
We agree with the Appellate Court's conclusion that, although the trial court should have allowed the statement to be marked as an exhibit for identification during trial, the subsequent marking of the statement, though unusual, made the appellate record whole and enabled the Appellate Court to decide whether the plaintiff was harmed by the trial court's error. Because the statement contained nothing that could be considered inconsistent with the defendant's testimony at trial and because the information found in the statement was already in evidence, there was nothing in the statement that would have helped the plaintiff's case. The trial court's error in failing to mark for identification the defendant's written statement did not harm the plaintiff and therefore does not constitute reversible error. See McCahill v. Town & Country Associates, Ltd., 185 Conn. 37, 40, 440 A.2d 801 (1981); State v. Annunziato, 169 Conn. 517, 524, 363 A.2d 1011 (1975).
The defendant's remaining claim on appeal is that the trial court erred in charging the jury that a property owner may await the end of a freezing rain or sleet storm and a reasonable time thereafter before removing ice and snow from outside entrance walks, platforms and steps. The Appellate Court concluded that the trial court's instructions were proper and consistent with the well established rule of law in other jurisdictions. Given the particular facts of the present case, we agree with the Appellate Court's conclusion that there was no error in the trial court's charge to the jury.
The plaintiff argues that the trial court's charge deviated from Connecticut precedent and amounted to a directed verdict for the defendant. The plaintiff relies of the rule of law enunciated in Reardon v. Shimelman, 102 Conn. 383, 389, 128 A. 705 (1925), that "[a]n accumulation of ice or snow upon a common approach to a tenement house may impose upon the landlord a liability for injuries due to it, provided he knew, or in the exercise of a reasonable oversight ought to have known, of the existence of the dangerous condition and failed to exercise reasonable care to provide against injury by reason of it." The circumstances giving rise to the rule in Reardon, however, differ considerably from the circumstances in the present case.
Unlike the present case, Reardon did not deal with a property owner's duty to protect invitees upon his property when a storm is in progress. In Reardon, a case in which we found error in the trial court's directed verdict for the defendant, there was no evidence presented of an ongoing storm. Evidence was presented, moreover, that the ice upon the defendant's sidewalk, which caused the plaintiff's fall, had been there for some days and that the defendant had notice of that fact.
Two additional cases relied upon by the plaintiff, Sheehan v....
To continue reading
Request your trial
-
Dominguez v. United States
...the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps.” Kraus v. Newton, 211 Conn. 191, 197–98, 558 A.2d 240 (Conn.1989). “In other words ... the landowner's duty to remove ice and snow does not arise until after a reasonable period ha......
-
Alcala v. Marriott Int'l, Inc.
...to the jury, on a proper evidentiary foundation, of the factual determination[ ] of whether a storm has ended.” Kraus v. Newton, 211 Conn. 191, 558 A.2d 240, 243–44 (1989). In one Connecticut case, the court found sufficient the evidentiary foundation for a requested continuing-storm instru......
-
Another v. Target Corp. & Another
...await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps.” Kraus v. Newton, 211 Conn. 191, 197-198, 558 A.2d 240 (1989). Because the plaintiff here did not slip on snow or ice during a snow storm, we need not and do not decide today......
-
Filippelli v. Saint Mary's Hosp.
...(failure to mark document for identification during trial harmless error as document was not admissible evidence), aff'd, 211 Conn. 191, 558 A.2d 240 (1989). In this case, although the court should have marked for identification the certification page of the deposition taken of Bazos in Geo......
-
Tort Developments in 2010
...183. 110. 281 Conn. 160, 164-65, 914 A.2d 529 (2007). 111. James, 125 Conn. App. at 184. 112 123 Conn. App. 73, 1 A.3d 243 (2010). 113. 211 Conn. 191, 558 A.2d 240 (1989). Kraus held that in the absence of unusual circumstances, a property owner, in fulfilling its duty owed to invitees upon......
-
1995 Connecticut Tort Law Review
...created. Gore, supra, 235 Conn. at 393. 10. Gore, supra, 235 Conn. at 380-82. 11. Id. at 382-91. 12. Id. at 382. 13. Id. at 383. 14. 211 Conn. 191, 558 A.2d 240 (1989). 15. Kraus, supra, 211 Conn. at 197-98. 16. 38 Conn.App. 844, 664 A.2d 791, cert. denied 235 Conn. 927, 667 A.2d 553 (1995)......