Monahan v. Montgomery

• Decision Date: 25 January 1966
• Court: Connecticut Supreme Court
• Parties: Hazel L. MONAHAN, Administratrix (ESTATE of John MONAHAN) v. William MONTGOMERY, Conservator (ESTATE of Lucie HEITMANN).

Page 824

216 A.2d 824

153 Conn. 386

Hazel L. MONAHAN, Administratrix (ESTATE of John MONAHAN) v. William MONTGOMERY, Conservator (ESTATE of Lucie HEITMANN).

Supreme Court of Connecticut.

Jan. 25, 1966.

Thomas F. Keyes, Jr., New Haven, with whom, on the brief, was Walter A. Mulvihill, New Haven, for appellant (defendant).

Alfonse C. Fasano, New Haven, for appellee (plaintiff).

Before KING, C. J., and MURPHY, ALCORN, SHANNON and HOUSE, JJ.

HOUSE, Associate Justice.

The plaintiff is the administratrix of the estate of her husband, whom, in the interest of brevity, we will hereinafter call the decedent. William Montgomery is the conservator of the estate of Lucie Heitmann, whom, for the same reason, we will call the defendant.

There is no dispute about the general circumstances giving rise to the suit. The decedent and the defendant were neighbors. On the defendant's property there was a two-car garage with a single driveway leading to it. The decedent rented one stall of the garage for the plaintiff's car while the defendant retained the use of the other. The decedent in 1957 had suffered a coronary thrombosis but had made a very good recovery and was in good health. In March, 1962, the plaintiff asked the decedent to go over and rake up the garage driveway, where there was an accumulation of leaves and branches. Trees overhung both sides of the driveway and had dead branches on them. The premises were located close to the shore of Long Island Sound, where it was windy, and as a result leaves and branches were blown around. The decedent first raked up a pile in front of the stall he rented and then started to rake up in front of the defendant's side of the garage. There was no witnesses to his fall. The plaintiff looked over from their house and saw the decedent lying in the driveway, stretched out at a right angle to the garage with his head nearest to the garage and about one foot away from the apron of the garage. His head was opposite the middle of the defendant's stall. He had a rake in his hand and stated to the plaintiff and to a neighbor that he tripped over a branch and fell. He never pointed out of identified any particular branch. An ambulance was called, and he was taken to a hospital, where he died two days later.

In the complaint it is alleged that the death was caused by the negligence of the defendant in failing to keep her premises in a reasonably safe condition in that, in the area of the garage, the premises 'were endangered by twigs, branches from bushes and trees' and that the driveway 'with the broken branches and twigs from the trees and bushes, strung along the ground, had a tendency to inflict harm upon a user of said driveway.' An allegation that 'said premises including said driveway were under the control of the defendant' was admitted.

The jury returned a verdict for the plaintiff, and the defendant has appealed, assigning error in the denial of the defendant's motions for a directed verdict, for judgment notwithstanding the verdict and to set the verdict aside. The assignment of error concerning the court's refusal to find certain facts has not been briefed and is therefore treated as abandoned. Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 659, 211 A.2d 687. The remaining assignments of error relate to the charge. They reassert the basic contentions of the defendant's motions that there was no evidence that the defendant had notice of the presence of the branch over which the decedent fell, that he was, under the circumstances, a licensee, and that the evidence did not disclose any breach of duty on the part of the defendant to him as a licensee.

So far as the status of the decedent as an invitee or a licensee is concerned, the jury were fully and properly instructed as to the difference between them and the tests to be applied in the determination as to which of the two categories the decedent belonged under the circumstances as the jury might find them. Although the court did not use the technical term 'licensee,' it did correctly charge on the law which was applicable if the decedent had that status. The court, in its charge, correctly following the rule as laid down in such cases as Hennessey v. Hennessey, 145 Conn. 211, 213, 140 A.2d 473, and Sokoloski v. Pugliese, 149 Conn. 299, 301, 179 A.2d 603, instrued the jury that, if, under the circumstances, they found that the decedent fell in an area which was beyond that which the defendant might reasonably have contemplated would be used by her tenant in the use and enjoyment of the leased premises, there could be no recovery by the plaintiff and their verdict must be for the defendant. The verdict for the plaintiff, therefore, established that the decedent was not a licensee and that the duty owed to him by the defendant was the duty owed by the owner of premises to an invitee.

For the plaintiff to recover for the breach of a duty owed to the decedent as an invitee, it was incumbent upon her to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused the decedent's fall or constructive notice of it. White v. E & F Construction Co., 151 Conn. 110, 113, 193 A.2d 716; Morris v. King Cole Stores, Inc., 132 Conn. 489, 492, 45 A.2d 710. The plaintiff made no claim of any actual notice but relied on a claim of constructive notice, that is, that the situation had existed for such a length of time that, had the defendant exercised reasonable supervision of her premises, she would have known of its existence. We have...