Hope v. Willimantic Partners, LLC

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Hope v. Willimantic Partners, LLC

RICHARD HOPE ET AL. v. WILLIMANTIC
PARTNERS, LLC, ET AL.
(AC 46499)
Moll, Seeley and Flynn, Js.

Syllabus

The defendant appealed from the trial court’s judgment, rendered after a
jury trial, for the plaintiffs, H and O, who had alleged that they were injured
when H slipped and fell on top of O in a parking lot owned by the defendant.
H died prior to trial, and a video recorded statement by H was admitted as a
full exhibit at trial pursuant to the dead man’s statute (§ 52-172). The jury
first returned a verdict for the plaintiffs, finding them each 70 percent neg-
ligent and the defendant 30 percent negligent. After the court reinstructed
the jury regarding comparative negligence, the jury found the defendant 100
percent negligent as to both plaintiffs and awarded each plaintiff the same
amounts as in the first verdict. On appeal, the defendant claimed, inter alia,
that the court improperly denied its motion for judgment notwithstanding
the verdict because there was insufficient evidence that a defect existed
where H fell and that the defendant had actual or constructive knowledge
of a specific defect on the premises. Held:

The trial court properly denied the defendant’s motion for judgment not-
withstanding the verdict, as there was sufficient evidence from which the
jury reasonably could have found the location of the defect in the parking
lot, that the defect existed in the place where H fell, and that the defendant
knew or should have known of that specific defect.

The trial court properly declined to give the defendant’s requested jury
charge limiting the use of H’s video statement to H’s claims only, as neither
the text of § 52-172 nor case law warranted an exception to the admissibility
of evidence under that statute disallowing its use as to O’s claims.

The trial court properly denied the defendant’s motion to set aside the verdict
claiming that the jury, on reconsideration of its initial verdict pursuant to
statute (§ 52-223), disregarded the law and the court’s instructions, as a jury,
on reconsideration, can change its verdict as to both liability and damages
and nothing in the record indicated that the jury disregarded the law or the
court’s reinstruction on comparative negligence.

The trial court properly declined to charge the jury on spoliation of evidence
with respect to the destruction of an engagement letter in a physical file that
had been maintained by the plaintiffs’ expert, as the charge was not reason-
ably supported by the evidence.

Argued September 8, 2025—officially released January 13, 2026
Hope v. Willimantic Partners, LLC

Procedural History

Action to recover damages for personal injuries sus-
tained as a result of the defendants’ alleged negligence,
and for other relief, brought to the Superior Court in the
judicial district of Hartford, where the administrators
and fiduciaries of the named plaintiff’s estate were sub-
stituted for the named plaintiff; thereafter, the court,
Rosen, J., granted the motion for summary judgment
filed by the defendants Liberty Bank Mortgage Company
et al.; subsequently, the court, Budzik, J., denied the
named defendant’s motion in limine to preclude certain
evidence; thereafter, the case was tried to the jury before
Cobb, J.; verdict for the plaintiffs; subsequently, the
court, Cobb, J., denied the named defendant’s motion to
set aside the verdict and for judgment notwithstanding
the verdict and rendered judgment for the plaintiffs,
from which the named defendant appealed to this court.
Affirmed.
Wesley W. Horton, with whom were Michael A. Lanza
and Jonathan P. Ciottone and, on the brief, Richard E.
Fennelly III and Mei-wa Cheng, for the appellant (named
defendant).
James J. Healy, with whom were Allison D. White and
Frank McCoy, for the appellees (plaintiffs).

Opinion

FLYNN, J. In this premises liability action, the defen-
dant Willimantic Partners, LLC,1 appeals from the judg-
ment of the trial court, rendered after a jury trial, in
favor of the plaintiffs, Richard Hope and his daughter,
Deborah Oliver, after they sustained injuries following
1
The complaint also named as defendants Liberty Bank Mortgage
Company and Liberty Bank Foundation, Inc. (Liberty Bank defendants).
The Liberty Bank defendants filed a motion for summary judgment,
which the court granted. The court then severed the indemnification
claims that the Liberty Bank defendants and Willimantic Partners,
LLC, brought against each other. The Liberty Bank defendants did not
participate in this appeal. Accordingly, we will refer in this opinion to
Willimantic Partners, LLC, as the defendant.
Hope v. Willimantic Partners, LLC

a fall on property owned by the defendant and leased to
Liberty Bank. On appeal, the defendant claims that the
court improperly (1) denied its motion for judgment not-
withstanding the verdict because there was insufficient
evidence that a defect existed where Hope fell and that
the defendant had actual or constructive knowledge of
a specific defect on the premises, (2) admitted Hope’s
statements under the dead man’s statute, General Stat-
utes § 52-172, without limitation at trial despite the fact
that Oliver is a living party, (3) denied its motion to set
aside the verdict despite that the jury acted improperly
by disregarding the law and the court’s instructions on
comparative negligence, and (4) declined to charge the
jury on spoliation of the evidence. We affirm the judg-
ment of the trial court.
For the reasons that follow, we conclude that the trial
court (1) properly denied the defendant’s motion for
judgment notwithstanding the verdict because there was
sufficient evidence that Hope fell at a spot in a parking
lot containing an uneven depressed linear defect of which
the defendant had at least constructive notice; (2) cor-
rectly applied § 52-172 when it rejected the defendant’s
requested charge limiting use of Hope’s video statement
to only Hope’s claims because neither the text of § 52-172
nor case law warrant this court drawing an exception to
the admissibility of evidence under that statute disallow-
ing its use as to Oliver’s claims; (3) properly exercised its
discretion in accepting the jury’s second verdict because,
on reconsideration, a jury can change its verdict both
as to liability and damages; and (4) did not improperly
decline to charge the jury on spoliation because the charge
was not reasonably supported by the evidence.
At trial, the jury was presented with evidence of the
following relevant facts. On January 19, 2016, Hope
and Oliver went to Liberty Bank in Willimantic, which
property the defendant owned. Because there was a car
in the handicap parking space, Hope parked two spots
over from that space. As he exited the bank to return to
his car, Hope stepped down from the curb on the sidewalk
Hope v. Willimantic Partners, LLC

onto the paved parking lot, placed his hand on the hood
of the car, walked one or two steps toward his car, and
fell in a pothole, landing on top of Oliver, who was walk-
ing next to him. The pothole was located in an uneven
linear depression in the pavement that ran the length
of the parking lot and ran only a couple of steps from
the sidewalk.
Prior to the fall, Hope, who used a cane or walker to
ambulate, was a “very independent” eighty-seven year
old who lived alone, volunteered in the community, fre-
quented restaurants, attended family parties, and went
to church. As a result of the fall, Hope suffered a partially
severed spinal cord that caused paralysis in three limbs,
was unable to speak normally, lost his connection with
the outside world, suffered incontinence, and never
returned home. He died in 2019, prior to trial.
Prior to the fall, Oliver, who had been diagnosed with
schizoaffective disorder in her early twenties, also was
“very independent.” Despite her diagnosis, she worked as
a cashier at Stop & Shop for approximately twenty-five
years, paid her own bills independently, had a routine
with Hope and another family member “where they would
go out frequently, whether that be go out to eat, to go
out to church,” and was “a real extrovert” who “liked to
interact with all the people.” As a result of the fall, Oliver
broke her right femur in two places and used a walker.
She was no longer able to work, was more dependent,
and experienced a marked decline in her mental health.
Oliver did not testify at trial.
A premises liability action was initiated against the
defendant by Oliver and Hope. The administrators and
fiduciaries of the estate of Richard Hope (collectively,
Hope’s estate) were substituted as plaintiffs for Hope
after his death. In the operative amended complaint, the
plaintiffs sought damages for personal injuries sustained
when they fell on the defendant’s Liberty Bank prop-
erty. In its answer, the defendant asserted the special
defense of comparative negligence as to each plaintiff.
A jury trial was held over five days in February, 2023.
Hope v. Willimantic Partners, LLC

At the close of the plaintiffs’ case, the defendant filed
motions for a directed verdict as to the counts alleged
by both Hope’s estate and Oliver. The court denied these
motions. The jury first returned a verdict in favor of
the plaintiffs while finding them each 70 percent negli-
gent and the defendant 30 percent negligent. The court
advised counsel of the issue this verdict presented. After
the court reinstructed the jury regarding comparative
negligence and read the pertinent portion of the original
charge, and following additional deliberation, the jury
found the defendant 100 percent negligent as to both
plaintiffs and awarded Oliver a total award of $318,900
and Hope’s estate a total award of $1,125,900. The court
accepted the verdict as to both plaintiffs. The defendant
filed a motion to set aside the verdict and for judgment
notwithstanding the verdict, which the court denied.
This appeal followed.2
I
The defendant first claims that the court improperly
denied its motion for judgment notwithstanding the
verdict because there was insufficient evidence that a
defect existed where Hope fell and that the defendant
had actual or constructive knowledge of that specific
defect on the premises. We are not persuaded.
We begin our analysis with the standard of review.
“The standard of review governing a motion for judgment
notwithstanding the verdict is the same [as a motion for a
directed verdict] because a motion for judgment notwith-
standing the verdict is not a new motion, but the renewal
of a motion for a directed verdict.” (Internal quotation
marks omitted.) Haynes v. Middletown, 314 Conn. 303,
2
In its appeal form, the defendant indicates that it is appealing from
the court’s judgment in favor of the plaintiffs and the court’s denial of
its motion to set aside the verdict and judgment notwithstanding the
verdict, motion for a mistrial, motion for remittitur, motion in limine,
request to charge, and motion for summary judgment. In its appellate
brief, the defendant challenges the court’s denial of its motion to set
aside the verdict and for judgment notwithstanding the verdict and the
denial of requested charges. We deem the decisions of the court listed
on the appeal form but not briefed to be abandoned.
Hope v. Willimantic Partners, LLC

312, 101 A.3d 249 (2014). “The legal question raised by
a motion for a directed verdict challenging the legal suf-
ficiency of the evidence, and by a motion for judgment
notwithstanding the verdict raising those same grounds,
is not the sufficiency of the plaintiff’s proof alone; it is
whether [a] directed verdict is justified [because] on the
evidence the jury reasonably and legally could not have
reached any other conclusion.” (Internal quotation marks
omitted.) Riley v. Travelers Home & Marine Ins. Co.,
333 Conn. 60, 81–82, 214 A.3d 345 (2019). “Whether
the evidence presented by the plaintiff was sufficient to
withstand a motion for a directed verdict is a question of
law, over which our review is plenary.” Curran v. Kroll,
303 Conn. 845, 855, 37 A.3d 700 (2012).
“[O]ur review of a trial court’s refusal to direct a ver-
dict or to render a judgment notwithstanding the ver-
dict takes place within carefully defined parameters.
We must consider the evidence, including reasonable
inferences which may be drawn therefrom, in the light
most favorable to the parties who were successful at
trial . . . giving particular weight to the concurrence of
the judgments of the judge and the jury, who saw the
witnesses and heard the testimony . . . . The verdict will
be set aside and judgment directed only if we find that
the jury could not reasonably and legally have reached
their conclusion.” (Internal quotation marks omitted.)
Riley v. Travelers Home & Marine Ins. Co., supra, 333
Conn. 70–71.
In its motion for judgment notwithstanding the ver-
dict, the defendant argued that no evidence was presented
at trial that it had actual or constructive knowledge of
the defect. In denying the motion, the court reasoned
“that, as to both plaintiffs, there was sufficient evidence
on which the jury might have reasonably reached its
conclusion, including testimony, photographs, expert
testimony, and other exhibits . . . .”
“[T]o succeed in a traditional negligence action that
is based on premises liability, the plaintiff must prove
(1) the existence of a defect, (2) that the defendant knew
Hope v. Willimantic Partners, LLC

or in the exercise of reasonable care should have known
about the defect and (3) that such defect had existed for
such a length of time that the [defendant] should, in the
exercise of reasonable care, have discovered it in time to
remedy it.” (Internal quotation marks omitted.) Hill v.
OSJ of Bloomfield, LLC, 200 Conn. App. 149, 154–55,
239 A.3d 345 (2020).
“[F]or the plaintiff to recover for the breach of a duty
owed to [him] as [a business] invitee, it [is] incumbent
upon [him] to allege and prove that the defendant either
had actual notice of the presence of the specific unsafe
condition which caused [his injury] or constructive notice
of it. . . . [T]he notice, whether actual or constructive,
must be notice of the very defect which occasioned the
injury and not merely of conditions naturally productive
of that defect even though subsequently in fact produc-
ing it.” (Internal quotation marks omitted.) Baptiste v.
Better Val-U Supermarket, Inc., 262 Conn. 135, 140,
811 A.2d 687 (2002). Such notice must be of the “very
defect” that occasioned the injury. (Internal quotation
marks omitted.) DiPietro v. Farmington Sports Arena,
LLC, 306 Conn. 107, 117, 49 A.3d 951 (2012). Accord-
ingly, business owners do not breach their duty to invitees
by failing to remedy a defect unless they had actual or
constructive notice of such defect. Id.
In the present case, there was sufficient evidence from
which the jury reasonably could have found, on the basis
of the evidence presented and the reasonable inferences
that could be drawn therefrom, the location of the defect
in the parking lot, that the defect existed in the spot
where Hope fell, and that the defendant knew or should
have known of that specific defect.
Specifically, evidence of the existence of a defect in
the Liberty Bank parking lot came from photographic
evidence and testimony from the plaintiffs’ expert. Plain-
tiffs’ exhibit 2, which was admitted as a full exhibit,
depicted the Liberty Bank parking lot with a single row of
parking spaces that abutted a sidewalk. Running length-
wise next to the sidewalk adjoining an unbroken paved
Hope v. Willimantic Partners, LLC

strip was an uneven linear depression in the asphalt.
White lines delineating parking spaces were painted
over the linear depression.
Evidence that the defect was an uneven linear depres-
sion in the pavement that had existed long enough for
white parking lines to be painted over it came from the
testimony of Mark Tebbets, the plaintiffs’ expert in Con-
necticut’s building code, who opined that the defect had
resulted from an excavation that had not been properly
compacted.3 Specifically, Tebbets testified that “the
walking surface adjacent to this sidewalk was in terrible
condition. There was a big hump in it and there were
depressions all over, so it was very unsafe walking sur-
face. Anything with a hump like that creates a problem
for people walking through it” and that it “looks like
somebody has dug a trench through there for some reason
and not done a very good job of compacting and finish-
ing it off when they were done. It also shows a number
of depressions in the asphalt where cars park. Cars have
hot—warm tires when they pull in and the warm tires
have a tendency to push the asphalt out, so some depres-
sions have been pushed into the asphalt. And it’s very
uneven walking surface.” He further testified that “you
can see the hump of the—of the asphalt, and you can see
it’s been that way for a while because they’ve actually
painted the lines over the top of it, but it is humped and
you can also see the depressions. Excuse me. There’s
some rainwater in them right now, so you can really see
the size and location of those depressions.” He further
elaborated that “[y]ou can see a depression where the car
tires would normally be, but it also extends over towards
the white line. The white line pretty much represents
3
Tebbets had the following expert credentials: he has a bachelor’s
degree in education from Rhode Island College; was an industrial arts
teacher who taught woodshop, metal shop, and electronics; worked in
construction; and he worked for the town of Groton for eleven years,
first as an assistant building official for the town of Groton before being
promoted to building official, zoning enforcement officer, and housing
code official, during which time he took the necessary tests to become
a “building code official, and then a master code official they called it
[back] the[n]; now they call it a master code professional, which is the
highest certification they give.”
Hope v. Willimantic Partners, LLC

the area that if you’re getting in and out of the vehicle
you would walk down. And you can see the broken and
deteriorated condition of that patch that they’ve put
over it, and it actually humps up at that point.”
Statements from Hope and testimony from Hope’s
relatives detailed the spot in the parking lot where Hope
fell. Specifically, Hope’s other daughter, Kathleen Hag-
gerty, testified that, according to her conversations
with Hope following the incident, during which time
she showed him photos of the Liberty Bank parking
lot, Hope explained to her that he did not park in the
handicap parking spot “ ‘[c]ause there was a car there,”
but parked “two over from the handicapped [parking
spot].” Plaintiffs’ exhibit 2 depicted the Liberty Bank
parking lot with a pile of snow at the far end of a single
row of parking spaces that abutted a sidewalk. Haggerty
testified as follows concerning plaintiffs’ exhibit 2 and
her conversations with Hope:
“Q. Can you identify which parking spot they were in
based on what [Hope] told you?
“A. Yes. . . .
“Q. Okay. Is there a picture there that you can identify
the parking spot they were in based on what he told you
when they fell?
“A. Yes.
“Q. And which number is that?
“A. That is number 2.
“Q. Okay. Can we look at number 2? And can you point
out which parking spot that is?
“A. It’s the third from the—it’s the third from the
snow.
“Q. And how do you know that?
“A. Because he said so.
Hope v. Willimantic Partners, LLC

“Q. Okay. So, it’s—maybe I’ll take that laser pointer.
Sorry. So, one, two, three; would that be the parking
spot?
“A. Yes.”
Prior to his death, Hope made a video statement con-
cerning the incident in the Liberty Bank parking lot,
which was admitted as a full exhibit at trial under the
dead man’s statute, § 52-172. Specifically, when asked
on the video about the cause of the fall, Hope explained:
“I went to the bank. We cashed my checks. Every . . .
Monday I’d go up. When we came out of the bank, we were
parked on the side of the curb, so I went to the curb, I held
on, the car was there, so I held onto the car, got off the
curb, got down to the flat surface, and then my daughter
was right beside me with the walker, behind me, and I
ran my fingers along the car to be secure and then all of
a sudden I took approximately one or two steps, I slipped
and fell over, hit my daughter’s knee and broke a bone
. . . two bones in the knees, then I came down and I hit
my head on the tar.” Additionally, Hope indicated that
he had seen pictures of the pothole or depressions in the
Liberty Bank parking lot, and, when asked whether that
pothole or depression in the parking lot was what caused
him to fall, he responded, “that would have been it . . . .”
James Oliver,4 Oliver’s son, testified that his grandfa-
ther, Hope, told him about the incident at Liberty Bank.
Specifically, James Oliver testified that Hope “stepped
on the curb to step down into the parking lot, [and] he
put his hand on the hood of the car. As he walked in the
parking lot, he fell in a pothole on top of [Oliver], and
then he ended up hitting his head on the tar.”
Despite this evidence, the defendant contends that
“there were no eyewitnesses to the incident, nor was
there any security footage. Plaintiffs’ expert could not
identify a specific defect in the parking lot. Ms. Oliver
did not testify at trial, and prior statements she made
were not admitted into evidence. Thus, the only evidence
4
We will refer in this opinion to Deborah Oliver as Oliver and to her
son, James Oliver, by his first and last names.
Hope v. Willimantic Partners, LLC

concerning the incident came from the mouth of Richard
Hope. But Mr. Hope said nothing to either Ms. Haggerty
or his grandson or in his video as to the specific defect
that caused the fall.” The defendant further argues that,
“[e]ven in response to leading questions, Mr. Hope did
not identify a specific defect himself in his video. He did
not know the specific spot where he fell, and he did not
even know which side of the car he got out of to go to the
bank, or state which side of the car he was on when he
fell. Rather, he said that he stepped off the curb onto a
flat surface.”
We first observe that neither eyewitness testimony nor
security footage was necessary. There was ample evidence
from which the jury reasonably could have concluded that
the plaintiffs fell as a result of a specific defect in the
Liberty Bank parking lot. Although the defendant also
highlights the lack, in some respects, of direct evidence,
we note that evidence “comes in two forms, direct and
circumstantial. The basic distinction between direct and
circumstantial evidence is that in the former instance the
witnesses testify directly of their own knowledge as to
the main facts to be proved, while in the latter case proof
is given of facts and circumstances from which the jury
may infer other connected facts which reasonably follow,
according to common experience. . . . Proof of a fact by
the use of circumstantial evidence usually involves a two-
step process. A fact is first established by direct evidence,
which is ordinarily eyewitness or other direct testimony.
That direct evidence can serve as a basis from which the
jury infers another fact. Thus, the direct evidence may
operate as circumstantial evidence from which a fact is
inferred by the jury. . . . When the necessity to resort to
circumstantial evidence arises either from the nature of
the inquiry or the failure of direct proof, considerable
latitude is allowed in its reception.” (Citations omitted;
internal quotation marks omitted.) Curran v. Kroll, 118
Conn. App. 401, 409, 984 A.2d 763 (2009), aff’d, 303
Conn. 845, 37 A.3d 700 (2012).
Although the jury would have had to have made rea-
sonable inferences in reaching the verdict, “[t]here is no
Hope v. Willimantic Partners, LLC

distinction between direct and circumstantial evidence
[so] far as probative force is concerned . . . . In fact, cir-
cumstantial evidence may be more certain, satisfying
and persuasive than direct evidence.” (Internal quo-
tation marks omitted.) Id., 408. The trier of fact may
draw whatever inferences from the evidence or facts
established by the evidence it deems to be reasonable
and logical and may also draw factual inferences on the
basis of already inferred facts. State v. Rhodes, 335
Conn. 226, 237–38, 249 A.3d 683 (2020). When we infer,
we derive a conclusion from proven facts because such
considerations as experience, or history, or science have
demonstrated that there is a likely correlation between
those facts and the conclusion; if that correlation is suf-
ficiently compelling, the inference is reasonable, but at
some point the link between the facts and the conclusion
becomes so tenuous that we call it speculation. Id., 238.
First, from Hope’s statement, the testimony of Hope’s
relatives, the expert testimony of Tebbets, and from the
photographic evidence of the Liberty Bank parking lot,
the jury reasonably could have inferred that the spot
where Hope fell was the pothole in the linear depression
depicted in the plaintiffs’ photographic evidence marked
as plaintiffs’ exhibit 2. Hope’s statement provided the
jury with a description of his fall.5 He stated that his car
was parked “on the side of the curb” and that he “held
onto the car, got off the curb, got down to the flat surface
. . . ran [his] fingers along the car to be secure and then
all of a sudden [he] took approximately one or two steps,
[and he] slipped and fell over . . . .” The jury could have
matched Hope’s statement with Haggerty’s identifica-
tion of the spot in which Hope parked as being “the third
from the snow” as depicted in plaintiffs’ exhibit 2. As
shown on plaintiffs’ exhibit 2, the uneven linear defect
5
The defendant’s argument that Hope was asked some leading ques-
tions in his video recorded statement is without merit. The statement
was admitted as a full exhibit, and it was within the province of the
jury to decide the weight to give that statement. See, e.g., Rickert v.
Fraser, 152 Conn. 678, 681, 211 A.2d 702 (1965) (“[t]he credibility of
witnesses and the weight to be accorded to their testimony lie within
the province of the jury”).
Hope v. Willimantic Partners, LLC

where Hope fell, which was sometimes referred to as a
“pothole,” ran directly parallel to and up against the
sidewalk and extended the length of the parking area,
including the spot that was the third from the snow. The
exhibit depicted a pile of snow running perpendicular to
the far end of the sidewalk and multiple parking spaces
abutting the sidewalk. Tebbets described the asphalt
near the sidewalk as being “in terrible condition,” with
“depressions all over,” creating “a problem for people
walking through it.”
Based on Hope’s statement that he was returning to
the car when he fell, James Oliver’s testimony that Hope
told him that, as he stepped off the sidewalk, he put his
hand on the hood of the car, and Haggerty’s testimony
that Hope had parked the car in the third spot from the
snow, the jury reasonably could have inferred that Hope
drove to the bank, parked the car facing the sidewalk,
and, after leaving the bank, returned to the driver’s side
of that parking spot. In his statement, Hope identified
the spot where he fell as being one or two steps from
the curb. From Hope’s description, plaintiffs’ exhibit 2
depicting the width of the linear defect in relation to the
white lines delineating the size of the parking space, and
Tebbets’ description of the defect as being where car tires
would normally be and extending toward the white line
that represents “the area that if you’re getting in and
out of the vehicle you would walk down,” the jury also
reasonably could have inferred that the uneven linear
depression depicted in plaintiffs’ exhibit 2 was one or
two steps in width. As stated in Hope’s own words, the
depression in the Liberty Bank parking lot “would have
been it” when describing the location of his fall.
Accordingly, construing the evidence in the light most
favorable to sustaining the verdict and asking whether
the totality of the evidence and reasonable inferences
support the jury’s verdict; Riley v. Travelers Home
& Marine Ins. Co., supra, 333 Conn. 70–71; we con-
clude that the jury reasonably could have inferred that,
more likely than not, Hope fell one or two steps from
Hope v. Willimantic Partners, LLC

the sidewalk in front of the parking space that was “the
third from the snow,” in which location there existed an
uneven linear depression. Although it is also reasonable
that the jury could have reached different inferences
from those supporting the verdict, proof of a material
fact by inference from circumstantial evidence need not
be so conclusive as to exclude every other hypothesis.
State v. Rhodes, supra, 335 Conn. 238. Significantly,
unlike Aristotelian and Thomistic logic, the law does not
demand metaphysical certainty in its proofs. Rather, the
preponderance of the evidence, applied to civil claims
generally, requires that proof be more probable than not
and does not require absolute certainty. Curran v. Kroll,
supra, 118 Conn. App. 408.
Second, there was sufficient evidence from which the
jury reasonably could have found that the defendant
knew or should have known of the specific defect where
Hope fell. The controlling question in deciding whether
a defendant had constructive notice of a defective con-
dition is whether that condition had existed for such a
length of time that the defendant should, in the exercise
of reasonable care, have discovered it in time to remedy
it, and the determination of what constitutes a reason-
able length of time is largely a question of fact to be
determined in the light of the particular circumstances
of a case. See Riccio v. Harbour Village Condominium
Assn., Inc., 281 Conn. 160, 163–64, 914 A.2d 529 (2007).
Plaintiffs’ exhibit 2 shows the white lines that delineate
parking spaces that had been painted in the parking lot,
including over the uneven linear defect, the lines bound-
ing the parking space that was the third from the snow in
which the plaintiffs fell. Additionally, Tebbets testified,
concerning the condition of the parking lot as containing
the uneven linear depression and resulting hump in the
asphalt, that it has “been that way for a while because
they’ve actually painted the lines over the top of it . . . .”
On the basis of the evidence that the white parking lines
had been painted over the defect, there was sufficient
evidence from which the jury reasonably could have
determined that the defect had existed long enough prior
Hope v. Willimantic Partners, LLC

to Hope’s fall so that the defendant knew or should have
known that the defect existed on its property.
For the foregoing reasons, we reject the defendant’s
contention that there was insufficient evidence both
of a specific defect and actual or constructive knowl-
edge of that specific defect on the premises. Because
the jury could have reasonably and logically reached its
conclusion, the defendant cannot prevail on its eviden-
tiary insufficiency argument. See, e.g., Riley v. Travel-
ers Home & Marine Ins. Co., supra, 333 Conn. 81–82
(directed verdict is justified only when jury could not
have reasonably and legally reached its conclusion). We,
therefore, conclude that the court properly denied the
defendant’s motion for judgment notwithstanding the
verdict.
II
The defendant’s next claim concerns a video state-
ment made by Hope prior to his death, which the court
admitted as a full exhibit at trial, without objection,
under the dead man’s statute, § 52-172. The defendant
argues that, as a matter of statutory construction, the
court erred in applying § 52-172 to allow the jury to
consider Hope’s video statement as evidence to support
Oliver’s claims. Specifically, the defendant contends
that the court misapplied § 52-172 when it rejected its
requested charge limiting use of the video evidence to
Hope’s claims only. We disagree.
The following additional procedural background is
relevant. The defendant filed a motion in limine seeking
to exclude “any witness from testifying concerning the
facts, circumstance[s] and cause of the subject fall as it
pertains to Deborah Oliver . . . [and] this should include
any statement by Richard Hope as contained in the video
statement as to the cause of Deborah Oliver’s fall.” The
court reserved its decision on that motion, and, at trial,
the court admitted into evidence Hope’s video recorded
statement as a full exhibit, without objection. The defen-
dant’s counsel requested that the court charge the jury
Hope v. Willimantic Partners, LLC

that it “cannot consider the statements of Richard Hope
in connection with the claims of Deborah Oliver.” In
declining to give the requested instruction, the court
reasoned that “I don’t think [the statute] goes as far as
to say that the jury can’t consider those statements as
to another party. Once it’s in as evidence, it’s evidence.”
We note that a relevant charge must be given if it is
reasonably supported by the evidence and constitutes
an accurate statement of the law. National Publishing
Co. v. Hartford Fire Ins. Co., 287 Conn. 664, 671, 949
A.2d 1203 (2008). In reviewing the issue before us, we
focus on whether it would constitute an accurate state-
ment of the law that Hope’s statements were limited to
the counts of the complaint alleged by Hope’s estate.6
This presents a question of statutory interpretation
over which we exercise plenary review. See Tomick v.
United Parcel Service, Inc., 324 Conn. 470, 477, 153
A.3d 615 (2016). When construing a statute, we seek
to determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of the case,
including the question of whether the language actually
6
The plaintiffs argue in their appellate brief that the defendant’s
claim concerning the interpretation of the dead man’s statute cannot
be reviewed because the defendant seeks to raise an evidentiary or
instructional argument through a motion for a directed verdict, never
identified nor appealed from any evidentiary ruling, never advanced an
objection to the introduction of the dead man’s evidence, never sought
a limiting instruction prior to the evidence being admitted below, and
never purported to challenge any such ruling when it appealed. The court
reserved its decision on the defendant’s motion in limine, which sought
to preclude from admission into evidence any statements by Hope as
to Oliver’s claims. The defendant did not renew the objection or seek a
limitation on its use when evidence from Hope was introduced into the
entire action under the dead man’s statute. At the charging conference,
however, the defendant requested that the court give the jury the limit-
ing instruction that Hope’s video recorded statement could not be used
as to Oliver’s claims. We take the plaintiffs’ point that the trial judge
was never alerted during trial that it continued to be an issue in the
case until the request to charge at the charging conference at the end
of the evidentiary portion of the case. The court declined to give that
charge requested by the defendant. In light of this charge request, which
complicates the issue of preservation for appeal, we proceed to decide
the issue on the merits and determine it is without merit.
Hope v. Willimantic Partners, LLC

does apply. Id. If the meaning of the text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. General Statutes § 1-2z.
Section 52-172 provides in relevant part that, “[i]n
actions by or against the representatives of deceased
persons, and by or against the beneficiaries of any life
or accident insurance policy insuring a person who is
deceased at the time of the trial, the entries, memoranda
and declarations of the deceased, relevant to the matter
in issue, may be received as evidence. . . .”
“The legislature’s purpose in enacting the dead man’s
statute was to remove the disparity in advantage previ-
ously possessed by living litigants as against the repre-
sentatives of persons whose voices were stilled by death,
by permitting the declarations and memoranda of the
latter to be received and weighed in the evidential balance
as against the assertions of the living. . . . The statute
is remedial and construed liberally, generally admitting
statements of decedents in actions by or against their
representatives.” (Citations omitted; internal quotation
marks omitted.) Dinan v. Marchand, 279 Conn. 558,
574, 903 A.2d 201 (2006).
The defendant contends that “[t]here is no doubt that,
if Ms. Oliver had sued separately, Mr. Hope’s statement
would not have been admissible in her suit. The outcome
should be no different just because Ms. Oliver’s action
was joined with Mr. Hope’s. If the contrary were true,
the statute would read ‘in actions involving the repre-
sentatives of deceased persons’ rather than ‘in actions
by or against the representatives of deceased persons.’ ”
(Emphasis omitted.) The plaintiffs counterargue that
“[t]his joint ‘action’ was brought by Mr. Hope (and,
thereafter, his representatives) as well as Ms. Oliver.
The statutory language clearly applied to this case.
Although the defendant would read it out of the statute,
Hope v. Willimantic Partners, LLC

the statutory term ‘actions’ has been interpreted and
applied broadly for more than a century.”
According to the plain text of § 52-172, relevant dec-
larations of the deceased may be received as evidence in
“actions by . . . the representatives of deceased persons .
. . .” (Emphasis added.) In interpreting the statute, every
word and phrase is presumed to have meaning, and we
do not construe statutes so as to render certain words
and phrases surplusage. Ugrin v. Cheshire, 307 Conn.
364, 383, 54 A.3d 532 (2012). “In the construction of the
statutes, words and phrases shall be construed according
to the commonly approved usage of the language; and
technical words and phrases, and such as have acquired
a peculiar and appropriate meaning in the law, shall be
construed and understood accordingly.” General Stat-
utes § 1-1 (a).
Our Supreme Court, in interpreting the word “action”
as used in a prior version of the dead man’s statute, which
preceded the 1949 codification of § 52-172, provided that
relevant declarations of deceased persons may be received
as evidence “in actions by or against the representatives
of deceased persons,” stated: “We find, in the first place,
that the remedy is confined to what are designated as
‘actions.’ This is a word which has been employed in a
strict technical sense, but we have repeatedly said of
it when used, as here, in statutes regulating judicial
procedure, that it might well be used in a more general
and comprehensive sense, embracing all proceedings
in a court of justice for the purpose of obtaining such
redress as the law provides.” Mulcahy v. Mulcahy, 84
Conn. 659, 663, 81 A. 242 (1911).
Before addressing the statutory requirements, we
emphasize that both Hope and Oliver were parties to
the action and that the claim of error relates to Oliver’s
claims only. The requirement specified in § 52-172
for the admissibility into evidence of statements by a
deceased person is simply that the statement be relevant
to the matter at issue and that it be in an “action” by or
against the representatives of the deceased person. The
Hope v. Willimantic Partners, LLC

defendant’s argument that the word “by” in the stat-
ute somehow limits the use of statements by deceased
persons to only claims raised by their representatives is
not convincing. It is axiomatic that there can be more
than one plaintiff in the same action. It is significant
that the statute does not limit the use of statements by
deceased persons to claims made by their representatives
but permits the admission of such statements in actions
by the representatives of the deceased.
Hope’s video recorded statement satisfies the require-
ments of § 52-172 for admissibility in the entire premises
liability action brought by Oliver and Hope; representa-
tives of Hope’s estate were later substituted for Hope.
Accordingly, because Hope’s statement was admissible
in the premises liability action and because § 52-172 does
not limit its use to only Hope’s claims, the court properly
declined to give the limiting instruction requested by
the defendant.7
III
The defendant next claims that the court improperly
denied its motion to set aside the verdict because the jury,
on reconsideration of its initial verdict, disregarded the
law and the court’s instructions. Again, we disagree.
“In reviewing a trial court’s action on a motion to set
aside a verdict, the question is whether the trial court
clearly abused its discretion. . . . Although the trial
court’s decision in this regard is entitled to great weight
. . . where it is clear that the jury could not reasonably
and logically have reached the conclusion they did, the
court’s refusal to set aside the verdict rendered will not
7
We note, additionally, a treatise on Connecticut evidence states that
“[e]vidence is not owned by the party offering it” but, rather, evidence
“can be used by any party for any purpose unless otherwise limited when
admitted.” E. Prescott, Tait’s Handbook of Connecticut Evidence (6th
Ed. 2019) § 1.19.5, p. 76.
Hope v. Willimantic Partners, LLC

be sustained.” (Citations omitted.) Labatt v. Grunewald,
182 Conn. 236, 240–41, 438 A.2d 85 (1980).
The following additional facts are relevant to this
claim. Following deliberations, the jury informed the
court that it had reached a verdict. The jury found in
favor of Oliver, awarding $63,000 in economic damages
and $1 million in noneconomic damages, and found the
defendant 30 percent negligent and Oliver 70 percent
negligent, for a total damages award of $318,900. The
jury’s initial verdict as to Hope was not read aloud in
court, but the jury form indicated that the jury found
in favor of Hope, awarding him $3 million in noneco-
nomic damages and $753,000 in economic damages,
while finding him 70 percent negligent, for a total award
of $1,125,900.
Outside the presence of the jury, the court stated, “we
have a problem, and the problem is that the percentage
attributable to the defendant is 30 percent and the per-
centage attributable to the plaintiff is 70 percent, which
means a defendant’s verdict.” Following a conference
with counsel off the record, the court reinstructed the
jury regarding comparative negligence. Specifically, the
court stated: “As I have explained, the plaintiffs claim
that . . . their injuries were caused by the defendant’s
negligence, and the defendant claims that they were
caused by the plaintiffs’ own negligence. If you find the
negligence on the part of all parties was a substantial fac-
tor in causing [the] plaintiffs’ injur[ies], then the law is
that the plaintiff can recover from the defendant only to
the extent of the defendant’s fault and may not recover
damages to the extent that he himself was at fault—or
they were at fault. If the plaintiffs were more at fault
than the defendant, then the plaintiffs cannot recover
damages. . . . So, what I’m going to ask you to do is to take
a look at this, talk to each other, figure out what it is you
intended to do. If your intention is that the defendant
was 30 percent at fault and the plaintiff was 70 percent at
fault, you need to fill out the other forms for defendant’s
verdict. If your intention is something else, you need to
Hope v. Willimantic Partners, LLC

fix this form. Do you understand? Okay. Do you think
you can do this very quickly?”8 Following additional
deliberation, the jury returned a verdict in favor of Oliver
and against the defendant as follows: economic damages
of $63,000 and noneconomic damages of $255,900, with
the defendant 100 percent negligent and Oliver 0 percent
negligent, for a total damage award of $318,900. The jury
also returned a verdict in favor of Hope and against the
defendant as follows: economic damages of $753,000 and
noneconomic damages of $372,900, with the defendant
100 percent negligent and Hope 0 percent negligent, for
a total damage award of $1,125,900. The court accepted
the verdict as to both plaintiffs.
In its motion to set aside the verdict, the defendant
argued that the court’s reinstruction on comparative
negligence was improper as it should have recharged the
jury regarding damages and that the jury was confused
by the court’s instructions because it changed the per-
centage of negligence attributable to each party as well
as the damage award. The defendant also argued that the
jury disregarded the law and the court’s instructions.
On appeal, the defendant argues that, in awarding the
plaintiffs the same total damage award as it did in its
initial verdict while altering the percentage of negligence
attributable to the parties, “the jury disregarded the law
and gave the plaintiffs the sums previously agreed on.
That is the only logical way to read what the jury did.”
(Emphasis omitted.)
We conclude that the court was within its discretion
in accepting the jury’s second verdict. “The supervision
which a presiding judge has over a verdict which may be
8
The defendant also contends that “[t]he court encouraged [the jurors]
to make a quick decision and they did. Indeed, in the ears of impres-
sionable jurors, the court’s language—‘Do you think you can do this
very quickly?’—may have sounded tantamount to an order.” We do not
characterize the court’s language that way. The court day was waning
and trial courts sometimes, if not often, take note of this because if the
jury could not come back with a second verdict quickly, then common
sense would dictate that that day’s proceedings would need to end for
that day and that the proceeding be continued on the next court date.
Hope v. Willimantic Partners, LLC

rendered is an essential part of the jury system, and that
supervision tends to make jurors more careful in reaching
their conclusions. . . . The control of the court over the
verdict of the jury is limited but salutary. . . . General
Statutes § 52-223,9 which permits the court to return a
jury to consider their verdict, appropriately employed,
is a salutary and effective method of exercising judicial
supervision over a verdict which may be rendered by a
jury. The practice of returning the jury for further con-
sideration has been followed since Russell v. Bradley, 4
Day [Conn.] 403, 406 [1810], by the authority of § 52-223
and its predecessors. . . . The exercise of the court’s
power under § 52-223 in returning the jury to reconsider
their verdict is not conditioned on the verdict being so
unreasonable that, if accepted, it would have to be set
aside.” (Citations omitted; footnote in original; internal
quotation marks omitted.) Van Nesse v. Tomaszewski,
265 Conn. 627, 634, 829 A.2d 836 (2003).
Nothing in the record indicates that the jury disre-
garded the law or the court’s reinstruction on compara-
tive negligence. The inconsistencies in the first verdict
wherein the jury found the plaintiffs to be 70 percent
negligent but nonetheless found in favor of the plaintiffs
and awarded them damages indicates confusion. How-
ever, following reinstruction on comparative negligence,
the second verdict was consistent with the jury finding
the defendant 100 percent negligent, finding in favor
of the plaintiffs, and awarding them damages. Jurors
sometimes can be mistaken or confused at first but that
does not mean that they are disregarding or violating
the law or the court’s instructions when they change
their mind following reinstruction by the court. Contra
Labatt v. Grunewald, supra, 182 Conn. 241 (it was clear
9
“General Statutes § 52-223 provides: The court may, if it judges
the jury has mistaken the evidence in the action and has brought in a
verdict contrary to the evidence, or has brought in a verdict contrary
to the direction of the court in a matter of law, return them to a sec-
ond consideration, and for the same reason may return them to a third
consideration. The jury shall not be returned for further consideration
after a third consideration.” (Internal quotation marks omitted.) Van
Nesse v. Tomaszewski, 265 Conn. 627, 634 n.5, 829 A.2d 836 (2003).
Hope v. Willimantic Partners, LLC

that jury was confused when verdict that was returned
was illogical and unreasonable in light of instructions
given in case where, even after additional charge on
comparative negligence, jury informed judge that they
were confused).
In the absence of a contrary indication in the present
case, the jury is presumed to have followed the court’s
instructions. See Duncan v. Mill Management Co. of
Greenwich, Inc., 308 Conn. 1, 22, 60 A.3d 222 (2013).
Second, a jury is allowed to change its mind. Simply
put, a jury is not bound either as to the amount of the
damage award or as to the liability findings from its first
verdict and can reconsider the verdict. “[U]ntil the jury
rendered a verdict that the court accepted, the jury was
free to change its award regarding the award of noneco-
nomic damages.” Van Nesse v. Tomaszewski, supra,
265 Conn. 635; see also Towhill v. Kane, 147 Conn. 191,
194, 158 A.2d 251 (1960) (no merit to claim that jury,
upon reconsideration, was powerless to change verdicts
on issue of liability). Additionally, there was no request
for the jury to be returned to reconsider its verdict for a
third time because of jury confusion.
Accordingly, the court did not abuse its discretion in
accepting the second verdict and properly denied the
defendant’s motion to set aside the verdict. See, e.g.,
Van Nesse v. Tomaszewski, supra, 265 Conn. 634–35
(where court returned case to jury with instructions to
reconsider amount of economic damages as it was con-
trary to stipulation, jury was free to increase its award
of noneconomic damages so as to award same total award
as original verdict because implicit in notion that trial
court has discretion to decline to accept jury’s verdict is
that until verdict is accepted, there is no valid verdict).
IV
The defendant last claims that the court improperly
declined to charge the jury on spoliation of the evidence
concerning a missing letter from Tebbets’ file because
the issue of whether it was disposed of intentionally or
Hope v. Willimantic Partners, LLC

inadvertently was within the province of the jury. We
are not persuaded.
“In determining whether the trial court improperly
refused to give a requested charge, we review the evi-
dence presented at trial in the light most favorable to
supporting the proposed charge. . . . A request to charge
which is relevant to the issues of [a] case and which is
an accurate statement of the law must be given. . . . If,
however, the evidence would not reasonably support a
finding of the particular issue, the trial court has a duty
not to submit it to the jury. . . . Thus, a trial court should
instruct the jury in accordance with a party’s request to
charge [only] if the proposed instructions are reasonably
supported by the evidence.” (Citation omitted; internal
quotation marks omitted.) National Publishing Co. v.
Hartford Fire Ins. Co., supra, 287 Conn. 671.
An adverse inference may be drawn against a party
who destroyed evidence only if the trier of fact is satis-
fied that the party who seeks the adverse inference has
proven the following. First, the spoliation must have been
intentional, meaning that the evidence was disposed of
intentionally and not merely destroyed inadvertently;
second, the destroyed evidence must be relevant to the
issue or matter for which the party seeks the inference;
and third, the party who seeks the inference must have
acted with due diligence with respect to the spoliated
evidence. Beers v. Bayliner Marine Corp., 236 Conn.
769, 777–78, 675 A.2d 829 (1996).
On direct examination, Tebbets testified that he made
an inspection in the present case as a result of either an
email or a phone call. When asked “what happened to
that email,” he explained that, “unfortunately, I did
this inspection in 2016 and my daughter, who maintains
my files, thought that a case six—this was back, what,
six or seven months ago, a case that is six years old had
already settled, and inadvertently disposed of it. So, I
lost my paper file on that case, but I did have the things
that were left on my computer.” On cross-examination,
he explained again that his “daughter had inadvertently
Hope v. Willimantic Partners, LLC

thrown out the file.” When asked, “So, there was a data
dump off your computer of one document from one file,”
Tebbets responded, “No, it wasn’t a data dump. It was
[a] paper file that she looked at it and thought that it was
all over and done with.” He further explained that “[t]he
remainder of the file was kept on my—on my computer.”
At the charging conference, the defendant’s counsel
requested that the jury be charged on the spoliation of
evidence concerning the letter missing from Tebbets’
file, arguing that “the evidence presented shows that the
destruction of that file was intentional. [Tebbets] testified
that his daughter, who works for him, destroyed the file
at his direction, so that would be an intentional act, not
inadvertent.” In declining to charge the jury on spolia-
tion, the court reasoned, “[w]ith respect to spoliation,
the court did consider this charge in relation to [Tebbets],
but the court did not see any evidence presented that
[Tebbets] destroyed the letter . . . intentionally. It’s—
the evidence presented was, at most, negligent, and,
therefore, the court has declined to give that charge.”
The court’s reasoning for not charging the jury on
spoliation rested on the fact that no evidence was pre-
sented at trial that Tebbets intentionally had the file
containing the letter destroyed. It is well established
that it is error for a court to instruct the jury on an issue
that is not supported by the evidence offered at trial
and, instead, jury instructions should be confined to
matters in issue by virtue of the pleadings and evidence
in the case. See Kos v. Lawrence + Memorial Hospital,
334 Conn. 823, 838, 225 A.3d 261 (2020). Our review
of the record reveals that the only evidence adduced at
trial concerning the missing letter was from Tebbets,
who testified that his daughter inadvertently disposed
of his paper file and that his electronic version of the file
did not contain the missing letter. Although the trier of
fact may either believe or disbelieve Tebbets, it could not
presume from his testimony that his daughter inadver-
tently disposed of the file that the opposite was true. See
Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147
Hope v. Willimantic Partners, LLC

(1979) (“While it is true that it is within the province of
the jury to accept or reject a defendant’s testimony, a
jury in rejecting such testimony cannot conclude that the
opposite is true. . . . A jury cannot, from a disbelief of a
defendant’s testimony, infer that a plaintiff’s allegation
is correct.” (Citations omitted.)). Accordingly, the court
did not improperly determine that there was no evidence
that the letter was disposed of intentionally.
Although the defendant primarily focuses on the first
prong of the spoliation test, it also states that the other
prongs of a spoliation claim “are not in question.” We
disagree. Scant evidence was produced at trial as to the
second prong of relevance. On cross-examination, Teb-
bets answered the following question in the affirmative:
“[J]ust so we’re clear, the correspondence or email that
you assume retained you, directed you, and asked you
what to do from this file is missing. That’s correct?”
Although Tebbets testified that the plaintiffs hired him
in the present case, there was no record evidence as to
who sent him the letter. Additionally, when he was then
asked, “[t]hat’s a pretty pivotal part of the file, wouldn’t
you agree,” Tebbets responded, “[n]ot really, because we
have the report to show what I was asked to look at. So,
everything—the only thing I don’t have is the piece of
paper asking me to do what I did. And obviously I got
paid for it, so I must’ve done what I was asked to do. So,
if you put those two bookends together, I think there
is really no need for an email asking me to go out there
because I did.” Given this testimony, it is questionable
how relevant the letter sent to Tebbets could be to the
premises liability action where the only evidence of the
content of that letter was that it merely instructed Teb-
bets to investigate the Liberty Bank parking lot and it is
not even clear who sent the letter.
The third prong requires the party seeking the infer-
ence to have acted with due diligence with respect to
the spoliated evidence. “If the spoliated evidence was
necessary for inspection or testing, the party who seeks
the inference must have taken all appropriate means to
Hope v. Willimantic Partners, LLC

have the evidence produced.” Beers v. Bayliner Marine
Corp., supra, 236 Conn. 778. On July 5, 2018, before
the letter was inadvertently destroyed, the plaintiffs
disclosed Tebbets as an expert witness, yet the defendant
did not depose Tebbets until more than four years later
on September 14, 2022.
The defendant emphasizes in its brief that the issue
of spoliation and, in particular, whether the file was
disposed of inadvertently or intentionally, was a factual
issue for the jury to decide. While a relevant charge
must be given if, inter alia, it is reasonably supported by
the evidence; see National Publishing Co. v. Hartford
Fire Ins. Co., supra, 287 Conn. 671; the converse is also
true. “It is well established that it is error [for a court]
to instruct the jury on a doctrine or issue [that is] not
supported by the evidence offered at trial.”10 Kos v.
Lawrence + Memorial Hospital, supra, 334 Conn. 838.
Even in the light most favorable to supporting the
charge, there is scant evidence in the record concerning
the second and third prongs, and what little evidence
there is does not support those elements. More signifi-
cantly, evidence as to the first prong did not support
it. Accordingly, the court acted properly in failing to
instruct the jury on spoliation. See id.
In sum, we reject the defendant’s claims on appeal
because we conclude that (1) there was sufficient evi-
dence from which the jury reasonably could have found
that Hope fell at the spot in a parking lot containing an
uneven depressed linear defect of which the defendant
10
In addition to not demonstrating error, the defendant made no
argument on appeal concerning harmfulness. Even if, for the sake of
argument, we assumed error, the defendant would not be entitled to a
new trial because the defendant has not fulfilled its burden of demon-
strating that any error was harmful. See Kos v. Lawrence + Memorial
Hospital, supra, 334 Conn. 845. An instructional impropriety is harmful
if it is likely that it affected the verdict. Id. The letter directing Tebbets
to conduct an investigation of the parking lot was not material and,
therefore, was unlikely to have affected the verdict. Tebbets’ electronic
file was intact in all other respects, and he testified to his observations
of the parking lot at trial.
Hope v. Willimantic Partners, LLC

had at least constructive notice; (2) the court properly
rejected the defendant’s requested charge limiting use
of Hope’s statements under § 52-172 to only his case;
(3) the court properly exercised its discretion in accept-
ing the jury’s second verdict; and (4) the court did not
improperly decline to charge the jury on spoliation of
the evidence.
The judgment is affirmed.
In this opinion the other judges concurred.