Perez v. Cumba, No. 33590.

• Decision Date: 02 October 2012
• Docket Number: No. 33590.
• Citation: 138 Conn.App. 351,51 A.3d 1156
• Court: Connecticut Court of Appeals
• Parties: Marisol PEREZ, Administratrix (Estate of Hiram D. Colon, Jr.) v. Elizabeth CUMBA.

138 Conn.App. 351

51 A.3d 1156

Marisol PEREZ, Administratrix (Estate of Hiram D. Colon, Jr.)

v.Elizabeth CUMBA.

No. 33590.

Appellate Court of Connecticut.

Argued May 23, 2012.

Decided Oct. 2, 2012.

Richard L. Zayas, with whom, on the brief, was Maximiliano Zayas, Hartford, for the appellant (plaintiff).

W. Glen Pierson, with whom, on the brief, was Eileen R. Becker, Wallingford, for the appellee (defendant).

GRUENDEL, BEACH and SCHALLER, Js.

GRUENDEL, J.

This unconventional premises liability case concerns injuries sustained by a social invitee as a result of the intentional and criminal acts of a third party. The plaintiff, Marisol Perez, administratrix of the estate of Hiram D. Colon, Jr., appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant, Elizabeth Cumba. The plaintiff claims that the court improperly instructed the jury that, to find in her favor, it must find that the defendant possessed notice of the specific dangerous condition that caused the death of her decedent. We agree and reverse the judgment of the trial court.

The relevant facts largely are undisputed. On the evening of November 17, 2006, the defendant hosted a birthday party at her residence in East Hartford for her fifteen year old daughter. Although she originally told her daughter that she could invite five to ten friends, forty to fifty high school teenagers attended the party, including the decedent.¹ Because the crowd was larger than she expected, the defendant called other adults for assistance as part of her efforts to ensure that “there were no fights.” Nevertheless, a fight occurred in the defendant's basement at approximately 10 p.m. that involved several guests. The defendant intervened and stopped that fight. She testified that she thereafter was concerned that another fight would transpire.

Less than one hour later, the defendant observed the decedent yelling in a stairway. After learning that the decedent had just arrived at the party, the defendant took him outside, grabbing him by the hand and telling him that “you need to leave. You can't come here, start a fight. This is my daughter's birthday.” As the defendant and the decedent exited the home, a group of six to eight individuals followed. The defendant and her teenage nephew escorted the decedent off her property and across the street to a bus stop ² as the decedent and the group of individuals continued to yell at each other. When she offered the decedent a ride somewhere, he stated that one was on the way. For several minutes, the defendant waited there with the decedent for his ride to arrive.

Another teenager then ran across the street and whispered something in the decedent's ear, agitating the decedent. As the defendant testified: “He whispered something in [the decedent's] ear. Then [the decedent] got louder. He started screaming at the [group of] kids. And that's when I ... tried to hold him back. And then I told my nephew, just hold him here because they were getting rowdier.... I told him, hold him here and I'll try to get these kids to go in the basement or in the garage or something.... The decedent was getting rowdier after his friend whispered something in his ear.” The defendant then crossed the street to remove the group of teenagers, at which time the decedent ran past her, reentered her property and confronted the group in her driveway. ³ The defendant at that time unsuccessfully attempted to diffuse the situation, threatening to call the police and telling “all of them to leave” her property. The decedent continued to argue with the group as the confrontation escalated. Eventually, the group moved past the defendant and chased the decedent to the front of her neighbor's yard, where a fight ensued. During that fight, the decedent was fatally stabbed.

The plaintiff thereafter commenced this wrongful death action. The operative complaint, the plaintiff's May 4, 2011 amended complaint, contains one count that does not specify any particular cause of action, but sounds in negligence. The complaint alleges that the defendant “owned and/or was in possession and/or control of” the premises in question and that the decedent “was a social guest, an invitee, at the home of the defendant....” ⁴ The complaint alleges that the defendant “breached the duty she owed to the decedent” in seven respects: (1) “she did not exercise the power of control or expulsion which her occupation of the premises gave her over the social invitees at the party to prevent injury and death to the [d]ecedent”; (2) “she failed to act as a reasonable person to avoid harm to the [d]ecedent even from intentional attacks on the part of third persons”; (3) “she failed to call the police to control or expel the social invitees that were causing the problems and ultimately stabbed and killed the [d]ecedent”; (4) “she failed to act to control the fight and conduct of the social guests that assaulted the [d]ecedent when the harm of the general nature suffered by the [d]ecedent was reasonably foreseeable”; (5) “she failed to properly supervise the party in order to deter or stop conduct such as the fight from occurring”; (6) “she failed to provide proper security to control and police the party to prevent harm to the social invitees”; and (7) “she failed to warn the [d]ecedent of the dangerous condition....” The complaint further alleges that as a “result of the negligence of the [d]efendant,” the plaintiff incurred various expenses. In her answer, the defendant denied those allegations. The defendant also filed two special defenses, in which she alleged that (1) the decedent was contributorily negligent and (2) “[t]he decedent's death was the result of the intentional and/or criminal actions of a third person that superseded any possible negligence on the part of the [d]efendant.” In response, the plaintiff filed an answer denying in general terms the special defenses.

A jury trial followed, during which the issue of the defendant's special defense of superseding cause arose when her counsel questioned the decedent's mother as to whether any criminal proceedings resulted from the stabbing of her son. The parties thereafter stipulated that six males who assaulted the decedent were criminally prosecuted and convicted of assault in the first degree in connection therewith. The court at that time explained to the jury that “[w]hat that means is, you may treat those facts as having been proven for purposes of this case.”

At the close of evidence, the court provided detailed instructions to the jury. It instructed the jury on the issue of notice as follows: “If the plaintiff is to prove that the defendant was negligent by maintaining her premises in a way which caused the deceased's injuries and death, she must also prove two other things. The first of these is that the defendant was in control of the premises, which is admitted. But the plaintiff must also prove that [the defendant] had notice of the specific dangerous condition which caused the death of her decedent. The ‘specific dangerous condition’ which caused the death was the presence at the party of a group of people who were having some disagreement with the decedent, one of whom possessed a deadly weapon, a knife, and the willingness to use it to inflict injury on [ the decedent ].

“The plaintiff must prove actual or constructive notice of both these conditions in order to prove that the defendant had the required notice. ‘Constructive notice’ means that the weapon was present on her property long enough for [ the defendant ] to know that it was there and for her to have enough time to correct the problem. [ The plaintiff ] cannot establish notice of the presence of the knife unless she proves that [the defendant] had actual or constructive knowledge of the specific dangerous condition which caused the injury and death. It is not enough for the ... plaintiff to have proven conditions which were likely to produce the dangerous conditions which produced the risk, even if those dangerous conditions did produce the risk. You must focus your attention and your inquiries on the question of whether [the defendant] had actual or constructive noticeof the specific dangerous condition which injured the plaintiff's decedent.

“In deciding the issue of notice, the subsidiary question is whether the defect or dangerous condition had existed for such a length of time that the defendant, in the exercise of due care, should have discovered it in time to have remedied it prior to the plaintiff being injured. What constitutes a reasonable time is a question of fact for you to determine based on the circumstances you find to have existed in this case.” (Emphasis added.)

The court later instructed the jury on superseding cause, stating: “The defendant ... claims that she did not legally cause the plaintiff's injury and death because the injury and death were produced, in material part, by a superseding cause. A superseding cause is any intentionally harmful act, force of nature or criminal event, unforeseeable by the defendant, which intervenes in the sequence of events leading from the defendant's alleged negligence to the plaintiff's ... alleged injury and proximately causes that injury. Under our law, the intervention of such a superseding cause prevents the defendant from being held liable for the plaintiff's injury on the ... theory that due to such superseding cause, the defendant ... did not legally cause the injury even though her negligence was a substantial factor in bringing the injury about. Therefore, when a claim of superseding cause is made at trial, the plaintiff must disprove at least one essential element of that claim by a fair preponderance of the evidence in order to prove, by that standard, its own conflicting claim of legal causation.

“In this case, [the defendant] claims that the conduct of [the six males whom the parties stipulated were convicted of assault in the first...