Ocasio v. Verdura Constr., LLC

• Court: Connecticut Court of Appeals
• Writing for the Court: BRIGHT, C. J.
• Citation: Ocasio v. Verdura Constr., LLC, 215 Conn.App. 139, 281 A.3d 1205 (Conn. App. 2022)
• Docket Number: AC 44100
• Decision Date: 13 September 2022
• Parties: Luis OCASIO v. VERDURA CONSTRUCTION, LLC, et al.

215 Conn.App. 139

281 A.3d 1205

Luis OCASIO

v.VERDURA CONSTRUCTION, LLC, et al.

AC 44100

Appellate Court of Connecticut.

Argued January 31, 2022

Officially Released September 13, 2022

James J. Healy, Hartford, with whom, on the brief, was Brian M. Flood, Middletown, for the appellant (plaintiff).

Miles N. Esty, Hamden, for the appellee (named defendant).

Bright, C. J., and Elgo and Flynn, Js.

BRIGHT, C. J.

The plaintiff, Luis Ocasio, appeals from the judgment of the trial court rendered after a jury verdict in favor of the defendant Verdura Construction, LLC.¹ On appeal, the plaintiff claims that (1) the court erred when it instructed the jury and provided it with interrogatories to answer regarding the ongoing storm doctrine and (2) such error was harmful because it likely confused and misled the jury as to the relevant law. We agree and, accordingly, reverse the judgment of the trial court.²

The following facts, as to which the plaintiff presented evidence to the jury, and procedural history are relevant to our resolution of this appeal. The plaintiff is a tenant in an apartment building in Waterbury that is owned and controlled by the defendant. At the time of the events underlying this case, railings ran along both sides of the stairs that led up to the building. According to the plaintiff, one of those railings was missing two screws and was rotted where it attached to the building.

On the morning of February 7, 2017, the plaintiff left his apartment to take out the garbage. At the time, sleet and/or freezing rain was falling, which caused ice and snow to accumulate on the building's porch and stairs. Despite the weather, the plaintiff walked over to the stairs while carrying the garbage bag and, once at the top of the stairs, grabbed the allegedly defective railing. According to the plaintiff, the railing then moved and gave way, causing him to lose his balance and fall down the stairs. The fall broke the plaintiff's leg.

On September 28, 2017, the plaintiff filed a complaint against the defendant alleging negligence. He specifically alleged that "[his] fall was caused by the negligence of the defendant ... its agents, servants and/or other employees in one or more of the following ways:

"a) they failed to properly maintain the porch and its railings;

"b) they failed to properly inspect the porch and its railings;

"c) they knew or should have known of the unstable and defective condition of the railing, yet took no steps to fix the condition;

"d) they allowed the unstable and defective condition of the railing to exist for an unreasonable period of time;

"e) they failed to adequately train their agents to inspect and maintain the porch and its railings;

"f) they failed to warn the plaintiff that the railing was unstable and defective;

"g) they failed to enact and/or follow adequate procedures to ensure the porch and its railings were properly inspected and maintained;

"h) they knew or should have known that people would be using the porch and its railings, yet failed to inspect and maintain the porch and its railings; and/or "i) they failed to erect signs, barriers or otherwise isolate the icy area of the porch and its railings."

On February 23, 2018, the defendant filed an answer denying the plaintiff's allegations and asserting as a special defense that the "[p]laintiff's injuries and damages, if any, were caused by his own contributory negligence ...." Prior to trial, the defendant notified the plaintiff that it also intended to assert the ongoing storm doctrine³ as a special defense and would request that the court take judicial notice of the doctrine. The plaintiff filed an objection to that request, arguing that the ongoing storm doctrine was inapplicable to the case because the plaintiff had alleged that a defective railing, and not "the accumulation of freezing rain, water and ice," caused his fall.

A jury trial was held on July 30, July 31 and August 1, 2019. During opening statements, the plaintiff's counsel set forth the plaintiff's theory of the case. Specifically, the plaintiff's counsel contended that the plaintiff's fall was caused by the defective railing and not by the ice and snow. The plaintiff's counsel further stated that, in the moments preceding the plaintiff's fall, he "realized that it was freezing rain" and "saw water and ice on the porch" but that he had "no problem walking on the porch," despite those wintery conditions. The defendant's counsel, on the other hand, contended that the evidence would show that the plaintiff's fall had been caused by the ice and snow on the porch and not by the defective railing.

At trial, the plaintiff testified about his fall: "It was going to be 10:30 in the morning. I was going out to take the garbage out. I went down the steps from my apartment. I opened the outside door. Then I started to see that there was frozen water—sleet coming down. I took a look at the porch and the porch is full of sleet—frozen water. I walked to the handle. I had no problem. I had the bag of garbage. I held on to the rail. When I leaned on the railing, the railing moved towards the outside. I dropped the garbage bag. I grabbed on—I was holding on to the rail. I wanted to pull the railing and I lost my balance. That's when I fell." The plaintiff adamantly denied that any slippery conditions on the porch and/or stairs had caused his fall.

After the plaintiff's direct examination, the court granted the defendant's request to use the ongoing storm doctrine as a special defense and informed the parties that it would charge the jury on the doctrine. According to the court, the plaintiff's testimony about ice and snow sufficiently implicated the ongoing storm doctrine and, thus, it was relevant to the case.

The defendant's counsel then began his cross-examination of the plaintiff. During that cross-examination, the plaintiff admitted that freezing rain was falling on the morning of his accident but continued to profess that the defective railing, not the weather, had caused his fall.

After the first day of trial concluded, the plaintiff filed a request for leave to file an amended complaint in order to conform his complaint to the evidence introduced at trial. The plaintiff specifically sought to remove paragraph 7 (i) from the complaint, which alleged that the defendant had been negligent in "fail[ing] to erect signs, barriers or otherwise isolate the icy area of the porch and its railings."

The court addressed the plaintiff's request to amend his complaint at the start of the second day of trial. Initially, the defendant had no objection to removing paragraph 7 (i) from the complaint. The court then asked the parties if so amending the complaint would eliminate the ongoing storm doctrine from the case, to which the plaintiff's counsel responded, "I believe it does." The defendant's counsel agreed that removing paragraph 7 (i) would eliminate the ongoing storm doctrine as a special defense but stated that the defendant would still request a jury charge on the doctrine because it believed that the jury needed such an instruction to help it determine the cause of the plaintiff's fall. The plaintiff's counsel then reiterated his argument that the ongoing storm doctrine was irrelevant because "[t]he bottom line is this is a defective railing case. There is no allegation about the issue of snow and ice being the cause of the fall."

Thereafter, the defendant's counsel argued that the ongoing storm doctrine was relevant because evidence of ice and snow had been introduced by the parties. The plaintiff's counsel renewed his objection to the jury being instructed on the ongoing storm doctrine, again arguing that the doctrine was inapplicable and that instructing the jury on it would prejudice the plaintiff's case. The defendant's counsel then informed the court that if it did not allow the defendant to rely on the ongoing storm doctrine, either by way of judicial notice or a jury instruction, the defendant would withdraw its nonobjection to the plaintiff's request to amend. At that point, the plaintiff's counsel argued that amending the complaint to remove the reference to the defendant's failure "to erect signs, barriers or otherwise isolate" the icy area was proper because there was no evidence, and there would be no evidence, on that issue. The court decided to hear the rest of the testimony before ruling on the plaintiff's request to amend.

The defendant's counsel then resumed his cross-examination of the plaintiff. The plaintiff continued to testify that the defective railing, not the ice or sleet, had caused his fall. In response, the defendant's counsel introduced into evidence several medical records that showed that, in the days and weeks after his fall, the plaintiff repeatedly had told his medical providers that he fell after slipping on ice. The plaintiff claimed those records were incorrect. The defendant's counsel then introduced into evidence an excerpt from the plaintiff's deposition, wherein the plaintiff described the fall as follows: "So when I was going to throw out the garbage, I realized there was freezing rain falling. So that's when I was holding on to the [railing] and had the bag in my hands. So when I was holding on to the [railing] I slipped. When I slipped, I dropped the garbage." The plaintiff also claimed that he had not said that at his deposition. Shortly after that exchange, the cross-examination concluded and the parties rested.

Thereafter, the court held a charging conference, which began with a conversation about whether questions regarding the ongoing storm doctrine should be included in the jury interrogatories. The plaintiff's counsel objected to including any such questions in the interrogatories, but the court overruled the objection. The court then proposed that the ongoing storm doctrine be the first topic the jury addressed in the interrogatories, to which the plaintiff's counsel again objected, arguing that "[t]he ongoing storm [doctrine] has...