Salaman v. City of Waterbury

• Decision Date: 11 August 1998
• Docket Number: No. 15653,15653
• Citation: 246 Conn. 298,717 A.2d 161
• Parties: Julio SALAMAN, Administrator (Estate of Jaime C. Salaman) v. CITY OF WATERBURY et al.
• Court: Connecticut Supreme Court

Page 161

717 A.2d 161

246 Conn. 298

Julio SALAMAN, Administrator (Estate of Jaime C. Salaman) v. CITY OF WATERBURY et al.

No. 15653.

Supreme Court of Connecticut.

Argued Jan. 14, 1998.

Decided Aug. 11, 1998.

Linda L. Morkan, Hartford, with whom, on the brief, was John H. Gorman, Assistant Corporation Counsel, for appellant (named defendant).

Jonathan J. Einhorn, with whom, were Steven D. Ecker and, on the brief, Leigh A. Newman, Hartford, for appellee (plaintiff).

Before CALLAHAN, C.J., and NORCOTT, KATZ, McDONALD and PETERS, JJ.

McDONALD, Associate Justice.

The named defendant, ¹ the city of Waterbury (city), appeals from the Appellate Court's decision reversing the trial court's judgment granting the city's motion for judgment notwithstanding the verdict. Salaman v. Waterbury, 44 Conn.App. 211, 687 A.2d 1318 (1997). There are two certified issues in this appeal: One, "[d]id the Appellate Court correctly conclude that the trial court had improperly set aside the verdict rendered in favor of the plaintiff because the plaintiff had failed to establish that (1) the city owed a duty to the plaintiff's decedent and (2) that the city had breached any such duty?" And two, "[d]id the Appellate Court correctly conclude that the trial court had granted the city's motion for judgment notwithstanding the verdict on a ground that was not first raised in the city's motion for directed verdict?" Salaman v. Waterbury, 240 Conn. 921, 692 A.2d 816 (1997). We reverse the judgment of the Appellate Court.

The plaintiff, Julio Salaman, administrator of the estate of his decedent, Jaime C. Salaman, brought an action against the city in three counts: nuisance, custodial negligence ² and premises liability negligence. The jury reasonably could have found the following facts. The plaintiff's decedent drowned while attempting to swim across the East Mountain Reservoir (reservoir) in Waterbury on September 2, 1991. Approximately halfway across the reservoir, he experienced difficulty swimming and called for help. Two people tried to rescue the decedent, but were unsuccessful.

At the time of his death, the decedent was part of a group of people from the defendant New Opportunities for Waterbury, Inc. (NOW), a residential counseling program. Following a picnic and a basketball game, the group, supervised by the defendant Michael Trotman, a residential supervisor employed by NOW, had traveled by van to the reservoir to swim. The reservoir, which was owned by the city, was not surrounded by a fence. There was an area to the side of the access road that was used for parking, and a trail that led to the water. The reservoir had not been used as a public water supply for more than thirty years, and the city allowed fishing with a permit. On occasion, some people may have used the reservoir for swimming. The city, however, did not permit swimming in the reservoir. There were no lifeguards or lifesaving equipment at the reservoir. There were several old signs posted on the reservoir property which read: "City of Waterbury, No Trespassing, Public Water Supply." There were no such signs in the parking area, on any of the trails or at the beach area. The decedent, a twenty-two year old former high school athlete, was an excellent swimmer who had been swimming since childhood. Salaman v. Waterbury, supra, 44 Conn.App. at 212-13, 687 A.2d 1318.

After the conclusion of the plaintiff's case, the city moved for a directed verdict on all counts. The court granted the motion with respect to the nuisance count, but denied the motion as to the negligence count that was based on premises liability. The basis for the city's motion for a directed verdict on that count was that the decedent was a trespasser as a matter of law. Id., at 213, 687 A.2d 1318.

In its charge to the jury, the trial court, after explaining the status of a trespasser on a landowner's property, stated: "Therefore, if you find that the plaintiff's decedent, Jaime Salaman, was a trespasser upon the reservoir property, then you must further find the defendant city of Waterbury owed no duty to [him]. If you find no duty, then you must return a verdict in favor of the defendant city...." The trial court also instructed as to the duty owed a licensee as follows: "But if you find that the group had express or implied authority to be on the premises, then they are licensees. And in order to establish liability as to a licensee, three essential elements must be present. One, that the [city] knew of the presence of the [decedent]; two, that it thereafter failed to ... warn him of a dangerous condition of which it knew and of which it could not reasonably assume the licensee knew of or which by reasonable use of his faculties would observe; and three, that such failure constituted the proximate cause of the [decedent's] injuries.... In order for the plaintiff to prevail, evidence must show that the circumstances were such that the knowledge of [the decedent's] presence could be imputed to the [city]. Such circumstances are sufficient to impute knowledge of presence to the [city] only where they are the equivalent of actual knowledge. This equivalent arises where the [city] could have and should have reasonably anticipated the [decedent's] presence on the premises because of the regular pattern of such presence at the approximate time of day and the place of injury."

The jury returned a verdict in favor of the plaintiff, allocating comparative negligence as follows: the city, 28 percent; NOW and Trotman, 57 percent; and the plaintiff's decedent, 15 percent. The jury awarded total damages of $1,226,264.60, and the city's allocation amounted to $343,354.08. Id., at 214, 687 A.2d 1318.

Thereafter, the trial court granted the city's motions to set aside the verdict and for judgment notwithstanding the verdict, concluding that the evidence was insufficient to impose liability on the city. The trial court concluded that trespasser liability could not be imposed as there was no evidence that the city's intentional or reckless conduct caused the drowning. The trial court also concluded that licensee liability could not be imposed because there was insufficient evidence to demonstrate that: (1) the city had actual or constructive knowledge of the presence of the decedent; (2) the city failed to exercise reasonable care by failing to warn him of any dangerous conditions that it reasonably could not have assumed the licensee knew of or by reasonable use of his faculties could observe; and (3) the city's failure to exercise reasonable care caused the decedent's drowning.

The Appellate Court reversed the trial court's judgment, concluding that the jury could have found that the decedent was a licensee because the jury reasonably could have inferred that the city had constructive knowledge of the general public's use of the reservoir for swimming. The Appellate Court concluded that this constructive knowledge gave rise to the duty "to exercise reasonable care to warn ... of conditions posing an unreasonable risk of harm." Id., at 218, 687 A.2d 1318. On the basis of that conclusion, the Appellate Court further concluded that the verdict should not have been set aside. Id., at 219, 687 A.2d 1318. This appeal followed.

I

With respect to the first certified issue, the city claims that the decision of the Appellate Court should be reversed because: (1) there was insufficient evidence to establish that the decedent was owed a duty as a licensee; (2) the Appellate Court misapplied the standard for determining whether a duty was owed to the decedent as a licensee; and (3) there was insufficient evidence to establish that any duty owed to the decedent was breached.

The city claims that its motion to set aside the verdict was properly granted because there was insufficient evidence to warrant recovery by the decedent as a licensee. We agree with the city, and, therefore, reverse the judgment of the Appellate Court.

"[The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion...." (Internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 206, 579 A.2d 69 (1990). "In reviewing the court's action in rendering a judgment notwithstanding the verdict, we consider the evidence in the light most favorable to the [plaintiff]." (Internal quotation marks omitted.) Id., at 207, 579 A.2d 69. With these legal principles in mind, we conclude that the jury reasonably could not have found that the city breached a duty to the decedent as a licensee to warn him concerning any dangerous conditions on the premises.

The status of an entrant on another's land, be it trespasser, licensee or invitee, determines the duty that is owed to the entrant while he or she is on a landowner's property. Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992). In this case, the jury was properly instructed as to the city's duty to the decedent if he was either a trespasser or a licensee. If the decedent was a trespasser, the city's only duty was to refrain from causing him injury "intentionally, or by willful, wanton or reckless conduct." (Internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 558, 707 A.2d 15 (1998). It is undisputed that the city did not intentionally or recklessly injure the decedent and the trial court was correct in its instructions. Therefore, as the Appellate Court observed, the jury must have concluded that the decedent was a licensee or it could not have imposed liability on the city. Salaman v. Waterbury, supra, 44 Conn.App. at 218, 687 A.2d 1318.

"A licensee is a person who is privileged to enter or remain upon land by virtue of the possessor's consent, whether given by invitation or permission." (Internal quotation marks omitted.) Laube v. Stevenson, 137 Conn. 469, 473, 78 A.2d 693 (1951). The duty that...