Morin v. Bell Court Condominium Ass'n, Inc.

• Decision Date: 04 August 1992
• Docket Number: No. 14360,14360
• Citation: 223 Conn. 323,612 A.2d 1197
• Court: Connecticut Supreme Court
• Parties: . Supreme Court of Connecticut

Page 1197

612 A.2d 1197

223 Conn. 323

Edward MORIN v. BELL COURT CONDOMINIUM ASSOCIATION, INC.

No. 14360.

Supreme Court of Connecticut.

Argued April 2, 1992.

Decided Aug. 4, 1992.

John A. Blazi, West Hartford, with whom was Robert S. Cullen, Hamden, for appellants (plaintiff and intervening plaintiff).

Ralph G. Eddy, with whom, on the brief, was Robert A. Byers, Hartford, for appellee (defendant).

Before PETERS, C.J., and CALLAHAN, COVELLO, BORDEN and BERDON, JJ.

COVELLO, Associate Justice.

This is an action to recover damages for personal injuries sustained as the result of the defendant condominium association's alleged negligence in the maintenance of a stairway in one of its buildings. The issue presented is whether the evidence at trial was sufficient as a matter of law to support the conclusion that the defendant had constructive notice of the plaintiff's presence at the time and place of the accident. ¹ We conclude that the evidence was insufficient and, therefore, affirm the judgment of the Appellate Court that so held.

The evidence adduced at a trial to the jury indicated the following. On May 13, 1986, the plaintiff, Edward Morin, an East Hartford police officer, responded to a radio dispatch informing him of a fire on the premises of the defendant, Bell Court Condominium Association, Inc. The complex consisted of four buildings housing approximately 200 people. There was no evidence that an agent of the defendant had requested police presence on the premises on that day. Upon arriving at 10 Bell Court, a three story building served by front and rear common hallways and staircases, the plaintiff entered the unlocked rear entrance and proceeded to evacuate the occupants. In the course of descending from the third floor to the second floor, the plaintiff sustained injuries when he tripped on a defective stair. The plaintiff testified that he, or other police officers, had been on the premises approximately twenty to thirty times prior to this accident, but he could not cite specific dates, times or places of their visits to the condominium complex. The plaintiff also failed to establish that any of the visits had occurred subsequent to the time that the defendant assumed control of the common areas when the complex was converted from rental apartments to condominiums.

At trial, the jury returned a general verdict for the plaintiff. Thereafter, the trial court granted the defendant's motion to set aside the verdict on the ground that there was insufficient evidence, as a matter of law, for the jury to have reasonably concluded that the defendant knew or should have known of the plaintiff's presence on the premises at the time and place of the incident. The Appellate Court affirmed the judgment of the trial court; Morin v. Bell Court Condominium Assn., Inc., 25 Conn.App. 112, 593 A.2d 147 (1991); and we subsequently granted certification to appeal limited to the issue of the sufficiency of the evidence concerning constructive notice.

On appeal, the plaintiff claims that the judgment of the Appellate Court should be reversed because: (1) constructive notice of his presence was established since the condominium complex had high levels of traffic in the common areas and the police had been summoned to the premises many times in the past and it was, therefore, foreseeable that they might return; and (2) constructive notice should have been assumed since the premises were open to the public. The parties agree that the defendant never had actual knowledge of the plaintiff's presence on the premises and that the plaintiff's legal status as a police officer on the premises in his official capacity was that of a licensee.

I

The plaintiff first claims that constructive notice of his presence was established because the police had been summoned to the dwelling twenty to thirty times in the past and it was, therefore, reasonably foreseeable that they might return. The plaintiff further argues that even if the defendant did not anticipate this particular plaintiff, the defendant still should be liable because it should have reasonably anticipated that someone might be injured by the defective step given the high level of traffic in the common areas of the condominium.

In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee. Corcoran v. Jacovino, 161 Conn. 462, 465, 290 A.2d 225 (1971); see D. Wright, J. FitzGerald & W. Ankerman, Connecticut Law of Torts (3d Ed.) § 47, p. 109. A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe. Warren v. Stancliff, 157 Conn. 216, 218, 251 A.2d 74 (1968). In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover. Id.; see generally D. Wright, J. FitzGerald & W. Ankerman, supra, § 49. "The duty that a ... [possessor of land] owes to a licensee, [however,] does not ordinarily encompass the responsibility to keep the property in a reasonably safe condition, because the licensee must take the premises as he finds them. Dougherty v. Graham, 161 Conn. 248, 251, 287 A.2d 382 (1971)." Furstein v. Hill, 218 Conn. 610, 624, 590 A.2d 939 (1991); see generally D. Wright, J. FitzGerald & W. Ankerman, supra, § 48. In general, however, with respect to active operations that the occupier engages in, as opposed to passive conditions on the land, "there is an obligation to exercise reasonable care for the protection of a licensee. He must ... [for example], run his train, operate his machinery, or back his truck with due regard for the possibility that the licensee may be present. The obligation is higher than that owed to a trespasser, because the possessor may be required to look out for licensees before their presence is discovered; but reasonable care will of course be affected by the probability that the licensee will come, whether he may be expected to follow a particular path, the time of day, and the nature of the danger." W. Prosser &amp W. Keeton, Torts (5th Ed.) § 60, p. 416. Additionally, as with trespassers, there is a duty to refrain from injuring a licensee "intentionally, or by willful, wanton or reckless conduct." W. Prosser & W. Keeton, supra, p. 415. As a general rule, "the possessor of real estate owes no duty to trespassers ... to keep the property in a reasonably safe condition for their use...." D. Wright, J. FitzGerald & W. Ankerman, supra, § 47, p. 110; see Carlson v. Connecticut Co., 95 Conn. 724, 730, 112 A. 646 (1921).

We treat as licensees police officers who are on private property in the exercise of their duties. Furstein v. Hill, supra, 218 Conn. at 615-16, 590 A.2d 939.

"The most compelling argument for the continuing validity of the rule is the recognition that ... police officers often enter property at unforeseeable times and may enter unusual parts of the premises under emergency circumstances. Kreski v. Modern Wholesale Electric Supply Co., [429 Mich. 347, 368, 415 N.W.2d 178 (1987) ]; Nared v. School District of Omaha, 191 Neb. 376, 379-80, 215 N.W.2d 115 (1974); 2 Restatement (Second), Torts (1965) § 345(1), comment (c), p. 228. Such public officers enter the land regardless of the owner's consent; indeed, if the conditions for the exercise of their public duty exist, the owner would not be privileged to exclude them. Shypulski v. Waldorf Paper Products Co., 232 Minn. 394, 396, 45 N.W.2d 549 (1951); Scheurer v. Trustees of the Open Bible Church, 175 Ohio St. 163, 168, 192 N.E.2d 38 (1963); 5 F. Harper, F. James & O. Gray, The Law of Torts (2d Ed.1986) § 27.14, p. 260." Furstein v. Hill, supra, at 616-17, 590 A.2d 939.

"Recognizing that only invitees may rely on an implied representation of safety, courts have considered it unreasonable to require landowners to undertake the same standard of care for public officers whose presence the landowners can neither predict nor interdict. "There would be an obvious hardship in holding otherwise, because landowners would then be under compulsion to keep all parts of their premises in a condition perhaps uncalled for by the normal use to which the premises are devoted.' Shypulski v. Waldorf Paper Products Co., supra [232 Minn. at], 397 [45 N.W.2d 549]; see also 2 Restatement (Second), Torts (1965) § 345(1), comment (c), p. 228." Furstein v. Hill, supra, at 617, 590 A.2d 939.

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 to danger and to warn him of dangerous conditions which the possessor knows of but which he cannot reasonably assume that the licensee knows of or by reasonable use of his faculties would observe." Lubenow v. Cook, 137 Conn. 611, 614, 79 A.2d 826 (1951); see Corcoran v. Jacovino, supra, 161 Conn. at 465, 290 A.2d 225. In order to establish that the defendant had constructive knowledge of the plaintiff's presence on the premises, the plaintiff must prove a level of knowledge "equivalent to actual knowledge." Corcoran v. Jacovino, supra, at 468, 290 A.2d 225.

The seminal Connecticut decision on this issue is Haffey v. Lemieux, 154 Conn. 185, 224 A.2d 551 (1966). In Haffey, the plaintiff postal carrier's ² injury was caused when a stair leading to the mailbox on the porch of the defendant's single family home collapsed. Id., at 187, 224 A.2d 551. The evidence adduced in Haffey established that the defendant had resided in his home for at least six months prior to the accident and that the plaintiff had delivered the mail daily, or at least whenever there was mail, at about the same time and at a specific place. Id., at 189-90, 224 A.2d 551. We concluded that constructive knowledge had been established because the plaintiff had visited the house with such reasonable regularity that...