Ocasio v. Verdura Construction, LLC

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LUIS OCASIO v. VERDURA CONSTRUCTION,
LLC, ET AL.
(AC 44100)
Bright, C. J., and Elgo and Flynn, Js.

Syllabus

The plaintiff sought to recover damages from the defendant landlord for
injuries he allegedly sustained as a result of the defendant’s negligence
in failing to maintain a porch railing on the premises leased by the
plaintiff. One winter morning, the plaintiff fell and broke his leg when
he exited his apartment building while sleet and/or freezing rain were
falling. The plaintiff claimed that his fall was due to a defective railing
that ran along the stairs leading up to the building. He alleged that the
railing gave way when he grabbed onto it, which caused him to lose
his balance and fall down the stairs. The defendant asserted the ongoing
storm doctrine as a special defense, claiming that it did not have a duty
to remove any ice from the property during a storm. The plaintiff argued
that the doctrine was not applicable because the theory of his case, as
presented to the jury, was that his fall was due to the defective railing,
not to the presence of ice on the porch. Over the plaintiff’s objection,
the trial court instructed the jury that if it determined that the ice on
the porch and stairs was the proximate cause of the plaintiff’s fall and
subsequent injuries, it had to apply the ongoing storm doctrine. The
trial court also provided the jury with a set of interrogatories. The first
two questions asked the jury whether it found that there was an ongoing
storm at the time of the incident and, if so, whether the defendant had
proved that the icy condition from such storm was the proximate cause
of the fall and damages sustained by the plaintiff. In the event that its
responses to those questions were in the affirmative, the interrogatories
instructed the jury to skip the remaining questions and to return a verdict
in favor of the defendant. The jury answered the first two questions in
the affirmative and, in accordance with the instructions, returned a
defendant’s verdict. Thereafter, the trial court denied the plaintiff’s
motion to set aside the verdict, and the plaintiff appealed to this
court. Held:
1. The trial court’s inclusion of the ongoing storm doctrine in the jury
instructions and interrogatories was in error because the doctrine was
inapplicable and irrelevant to the plaintiff’s claims: the plaintiff alleged
that his fall was due to the defective railing, not to the presence of snow
and ice on the porch; moreover, the plaintiff never claimed that the
defendant breached its duty of care by failing to remove ice and snow
from the porch and stairs, and, therefore, the liability issue that the jury
had to resolve was whether the plaintiff’s fall was caused by the defective
railing, the accumulated snow and ice, or the plaintiff’s own carelessness;
furthermore, even though the defendant had asserted the ongoing storm
doctrine as a special defense, an instruction on it could not reasonably
have been supported by the evidence.
2. The trial court’s erroneous instruction and interrogatories regarding the
ongoing storm doctrine were harmful: the trial court likely misled and
confused the jury by instructing it on a doctrine that was irrelevant to
the case, and such confusion was compounded by the court’s decision
to have the jury answer questions about the ongoing storm doctrine
first and by its instruction to the jury that it was not to answer any
additional interrogatories and was to return a defendant’s verdict if it
determined that the ongoing storm was the proximate cause of the
plaintiff’s injuries; moreover, the trial court’s actual instruction on the
ongoing storm doctrine likely further confused and misled the jury
because it was an incorrect statement of the law, as it told the jury that
the existence of an ongoing storm impacted its causation analysis instead
of properly stating that the doctrine relates solely to duty, which was
not at issue in this case; furthermore, the trial court’s repeated reference
in the charge to ‘‘the’’ proximate cause and its suggestion that the jury
had to find either the railing or the ongoing storm to be the proximate
cause of the plaintiff’s injury was incorrect, as it ignored the fact that
the injury could have had more than one proximate cause; additionally,
the instruction also was likely misleading, as it suggested to the jury
that it had to return a verdict for the defendant if it concluded that the
plaintiff’s fall was caused by the ongoing storm even if it also concluded
that the defective railing contributed to the fall.
3. The defendant could not prevail on its alternative grounds for affirmance
as they did not undermine this court’s conclusion that the instructional
error was harmful or that reversal was required: contrary to the defen-
dant’s claim, the plaintiff clearly introduced evidence that the railing
was defective; moreover, the plaintiff was not required to introduce
expert testimony as to the standard of care for the railing because that
issue was a matter of common knowledge; furthermore, the plaintiff
introduced sufficient evidence for the jury to conclude that the defendant
had constructive notice of the defective railing.
(One judge concurring in part and dissenting in part)
Argued January 31—officially released September 13, 2022

Procedural History

Action to recover damages for the defendants’ alleged
negligence, brought to the Superior Court in the judicial
district of Waterbury, where the plaintiff withdrew the
action as to the defendant Verdura Building, LLC; there-
after, the matter was tried to the jury before Brazzel-
Massaro, J.; verdict for the named defendant; subse-
quently, the court, Brazzel-Massaro, J., denied the
plaintiff’s motion to set aside the verdict and rendered
judgment in favor of the named defendant, and the
plaintiff appealed to this court. Reversed; new trial.
James J. Healy, with whom, on the brief, was Brian
M. Flood, for the appellant (plaintiff).
Miles N. Esty, for the appellee (named defendant).
Opinion

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 pre-
sented 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 specifi-
cally alleged that ‘‘[his] fall was caused by the negli-
gence 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 proce-
dures 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 dam-
ages, if any, were caused by his own contributory negli-
gence . . . .’’ 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 plain-
tiff 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 coun-
sel set forth the plaintiff’s theory of the case. Specifi-
cally, the plaintiff’s counsel contended that the plain-
tiff’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 condi-
tions. The defendant’s counsel, on the other hand, con-
tended 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-exami-
nation 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 para-
graph 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 doc-
trine 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-exam-
ination concluded and the parties rested.
Thereafter, the court held a charging conference,
which began with a conversation about whether ques-
tions regarding the ongoing storm doctrine should be
included in the jury interrogatories. The plaintiff’s coun-
sel objected to including any such questions in the inter-
rogatories, but the court overruled the objection. The
court then proposed that the ongoing storm doctrine
be the first topic the jury addressed in the interrogato-
ries, to which the plaintiff’s counsel again objected,
arguing that ‘‘[t]he ongoing storm [doctrine] has nothing
to do with [the case]. The case is whether the rail . . .
was defective and caused the injury. . . . [G]oing into
. . . [the] ongoing storm [doctrine] is inappropriate and
. . . it’s going to confuse the jury.’’ The plaintiff’s coun-
sel also argued that the evidence in the case about ice
and snow could go to the cause of the plaintiff’s fall
but that instructing the jury about the ongoing storm
doctrine on the basis of that evidence alone was prejudi-
cial. The court overruled the plaintiff’s objection and
ruled that the first two interrogatories the jury would
answer would be about the ongoing storm doctrine.
Thereafter, the court denied the plaintiff’s request to
amend his complaint, concluding that sufficient evi-
dence had been introduced regarding paragraph 7 (i).
The court then went over each of the proposed jury
instructions individually and asked the parties whether
they had any concerns with or objections to the instruc-
tions. When the court reached instruction number five,
the following colloquy occurred:
‘‘The Court: Instruction number five, burden of proof
special defense.
‘‘[The Defendant’s Counsel]: No objection, Your
Honor.
‘‘[The Plaintiff’s Counsel]: No objection, except for
the continuing storm doctrine.
‘‘The Court: That is correct. I’ll just note that for the
record. You don’t have to even say that.
‘‘[The Plaintiff’s Counsel]: Okay.
‘‘The Court: I’ll note that you’re going [to] have, any-
where we mention continuing storm . . . or ongoing
storm, you’re going to have an objection.
‘‘[The Plaintiff’s Counsel]: Correct.’’ (Emphasis
added.)
Before discussing instruction fifteen, which charged
the jury on comparative negligence, the court, sua
sponte, recognized the plaintiff’s standing objection to
the ongoing storm doctrine, stating, ‘‘And I know that
you have an objection to anything dealing with the
ongoing storm, [plaintiff].’’ Then, on instruction seven-
teen, which charged the jury on the ongoing storm doc-
trine, the court again, sua sponte, stated, ‘‘Other than
the objection as [a] whole on ongoing storm, any other
objections to [instruction 17]?’’ The plaintiff’s counsel
responded, ‘‘I’ll just clarify what you just said, that [the
ongoing storm doctrine] shouldn’t be part of the case.’’
After the charging conference, both parties gave their
closing arguments. In the plaintiff’s closing argument,
the plaintiff’s counsel again argued that the present
case was a ‘‘[d]efective premises case’’ that was the
‘‘result of a defective rail,’’ which caused the plaintiff
to fall. The plaintiff’s counsel further argued that the
ice and snow was unrelated to the plaintiff’s fall, stating:
‘‘He saw that there was an ice storm downstairs and
he assumed he would have no problem negotiating . . .
going down to the garbage can. . . . He saw that there
was water and ice on the porch. But that didn’t—he
had no issues with that. He actually walked safely on
the porch and went to the rail. And he’s been very
consistent throughout his testimony today, yesterday
and today, that as he went to the rail, the rail gave way
causing him to lose his balance.’’ Finally, with respect
to the ice on the stairs and the porch, the plaintiff’s
counsel stated: ‘‘Now there’s no question that there was
ice on the staircase. . . . There’s no question [that the
plaintiff] slipped on the ice [but] that was after he was
caused to fall. That is our claim. So he slipped on the
ice after he was caused to fall from the defective rail.’’
The defendant’s counsel, however, argued in his closing
argument that the plaintiff’s testimony that it was the
defective railing that caused his fall was not credible,
given the plaintiff’s many statements to medical person-
nel that he fell because of the ice and snow. The defen-
dant’s counsel further argued that the statements in the
plaintiff’s medical records, wherein the plaintiff said
that the ice and snow caused his fall, showed that the
plaintiff’s fall was caused by the ongoing storm and
not by the allegedly defective railing. Accordingly, the
defendant’s counsel asserted that the ongoing storm
doctrine barred the plaintiff’s recovery in the present
case.
Thereafter, the court instructed the jury on the law
of the case. With respect to the ongoing storm doctrine,
the court instructed the jury, in relevant part, as follows:
‘‘If you find that it was the ice that was the proximate
cause of the fall and not the alleged claims of a defective
railing as alleged by the plaintiff, you must consider
whether the defense of ongoing storm is applicable.
The defendant contends that at the time of the incident
in question there was an ongoing storm or weather
conditions which left some precipitation on the porch
and that this precipitation was the proximate cause
of the plaintiff’s fall and injuries or damages. The
plaintiff has specifically alleged . . . that the defen-
dant was negligent in a number of ways, including the
condition of the railing and the failure to isolate the icy
area of the porch and stair.
‘‘The defendant has alleged as a special defense that
the plaintiff’s recovery is barred by the ongoing storm
doctrine. Therefore, if you determine based upon the
testimony and evidence that there was an ongoing
storm and that the plaintiff’s fall and subsequent
injuries and damages were proximately caused . . .
as a result of the storm, which placed ice on the porch
and stairs that were the proximate cause of the injur-
ies, you are to apply this doctrine.’’ (Emphasis added.)
The court also provided the jury with a series of
interrogatories, which stated in relevant part:
‘‘We the jury find the following:
‘‘1) Do you find the defendant proved by a preponder-
ance of the evidence that at the time of the incident
there was [a]n ongoing storm? . . .
‘‘2) Do you find by a preponderance of the evidence
that the defendant proved the icy condition from the
ongoing storm was the proximate cause . . . of the fall
and damages sustained by the plaintiff?’’ (Emphasis
added.) The interrogatory form instructed the jury: ‘‘If
the answer to number 2 is yes, sign this form and go
to the defendant’s verdict form.’’
The jury answered ‘‘[y]es’’ to both interrogatories
about the ongoing storm doctrine. Consistent with the
instructions on the interrogatory form, the jury
answered no other interrogatories and the foreperson
signed and dated the defendant’s verdict form, returning
a defendant’s verdict, which the court accepted. There-
after, the plaintiff filed a motion to set aside the verdict,
alleging that the court (1) provided the jury with an
incorrect interrogatory, (2) improperly charged the jury
on causation, and (3) inappropriately instructed the jury
on the ongoing storm doctrine. On February 24, 2020,
the court held a hearing on the plaintiff’s motion to set
aside the verdict. On April 27, 2020, the court, by way
of a memorandum of decision, denied the plaintiff’s
motion. This appeal followed.
On appeal, the plaintiff claims that the court erred
when it instructed the jury on the ongoing storm doc-
trine because he clearly alleged that his fall was caused
by the defective railing, not by the defendant’s failure to
remove ice or snow, thus rendering the ongoing storm
doctrine irrelevant. The plaintiff further argues that the
court’s error was harmful because the court’s instruc-
tion and the interrogatories regarding the ongoing storm
doctrine instructed the jury that it must return a verdict
for the defendant if the storm was the proximate cause
of the plaintiff’s fall. The plaintiff argues that the court’s
instruction precluded the jury from considering
whether the allegedly defective railing also was a proxi-
mate cause of the plaintiff’s fall.
In response, the defendant argues that the court prop-
erly gave the ongoing storm doctrine instruction and
properly submitted the corresponding interrogatories
to the jury, the plaintiff expressly waived any objection
to the court’s proximate charge instruction, and the
court’s instruction on proximate cause was proper. In
the alternative, the defendant argues that any error by
the court was harmless because the judgment of the
court can be affirmed on the grounds that the plaintiff
failed to present sufficient evidence of a defect in the
railing or that the defendant had notice of any defect.
I
We first address whether the court erred in including
the ongoing storm doctrine in its jury instructions and
interrogatories. We begin with the standards of review
and principles of law that guide our analysis. ‘‘A chal-
lenge to the validity of jury instructions presents a ques-
tion of law. Our review of this claim, therefore, is ple-
nary. . . . We must decide whether the instructions,
read as a whole, properly adapt the law to the case in
question and provide the jury with sufficient guidance
in reaching a correct verdict. . . . [T]he test of a court’s
charge is . . . whether it fairly presents the case to
the jury in such a way that injustice is not done to either
party under the established rules of law. . . . It is
established law that it is error for a court to submit to
the jury an issue which is wholly unsupported by the
evidence.’’ (Citation omitted; internal quotation marks
omitted.) Iino v. Spalter, 192 Conn. App. 421, 458, 218
A.3d 152 (2019).
‘‘The power of the trial court to submit proper inter-
rogatories to the jury, to be answered when returning
[its] verdict, does not depend upon the consent of the
parties or the authority of statute law. In the absence
of any mandatory enactment, it is within the reasonable
discretion of the presiding judge to require or to refuse
to require the jury to answer pertinent interrogatories,
as the proper administration of justice may require.
. . . The trial court has broad discretion to regulate
the manner in which interrogatories are presented to
the jury, as well as their form and content. . . . More-
over, [i]n order to establish reversible error, the [plain-
tiff] must prove both an abuse of discretion and a harm
that resulted from such abuse.’’ (Internal quotation
marks omitted.) Champeau v. Blitzer, 157 Conn. App.
201, 210, 115 A.3d 1126, cert. denied, 317 Conn. 909,
115 A.3d 1105 (2015).
In Kraus v. Newton, 211 Conn. 191, 197–98, 558 A.2d
240 (1989), our Supreme Court adopted the ongoing
storm doctrine. The doctrine pertains ‘‘to the duty to
protect invitees upon one’s property when a snowstorm
is in progress at the time of [a] plaintiff’s alleged injury.’’
Belevich v. Renaissance I, LLC, 207 Conn. App. 119,
125, 261 A.3d 1 (2021); see also Sinert v. Olympia &
York Development Co., 38 Conn. App. 844, 849, 664 A.2d
791 (ongoing storm doctrine pertains to landowner or
other inviter’s ‘‘duty of care with respect to others’’),
cert. denied, 235 Conn. 927, 667 A.2d 553 (1995). The
court in Kraus defined the ongoing storm doctrine as
follows: ‘‘[I]n the absence of unusual circumstances, a
property owner, in fulfilling the duty owed to invitees
upon his property to exercise reasonable diligence in
removing dangerous accumulations of snow and ice,
may await the end of a storm and a reasonable time
thereafter before removing ice and snow from outside
walks and steps.’’ Kraus v. Newton, supra, 197–98.
The ongoing storm doctrine, however, ‘‘does not fore-
close submission to the jury, on a proper evidentiary
foundation, of the factual determinations of whether
a storm has ended or whether a plaintiff’s injury has
resulted from new ice or old ice when the effects of
separate storms begin to converge.’’ Id., 198. The doc-
trine also does not apply when there is evidence that
a preexisting dangerous condition on the defendant’s
property, unrelated to the ongoing storm, caused the
plaintiff’s injury. Id. (ongoing storm doctrine applied
because no evidence of preexisting dangerous condi-
tion on premises); see also Seitz v. J. C. Penney Proper-
ties, Inc., United States District Court, Docket No. 3:15-
CV-01131 (VAB) (D. Conn. September 28, 2017) (‘‘[t]he
ongoing storm doctrine is inapplicable when an invitee’s
injury stems from a ‘preexisting dangerous condition
upon the defendant’s premises’ . . . rather than the
ongoing storm’’); Berlinger v. Kudej, 120 Conn. App.
432, 436–37, 991 A.2d 716 (2010) (finding trial court’s
rendering of summary judgment in case involving ongo-
ing storm doctrine improper when there was genuine
issue of fact as to whether ice on driveway had accumu-
lated before ongoing storm); Mejias v. New York, 183
App. Div. 3d 886, 887–88, 125 N.Y.S.3d 112 (2020) (deny-
ing motion for summary judgment with respect to negli-
gence claim in case involving ongoing storm doctrine
because defendants ‘‘failed to eliminate triable issues
of fact as to whether an allegedly defective condition
with the step caused or contributed to the plaintiff’s
injuries’’).
In the present case, the ongoing storm doctrine was
inapplicable and irrelevant because the plaintiff was
not claiming that his fall was due to snow and ice that
the defendant had failed to remove or treat. The record
is clear that the theory of the plaintiff’s case as pre-
sented to the jury was that his fall was due to the
defective railing and not due to the presence of snow
and ice on the porch.
The plaintiff repeatedly testified at trial that he lost
his balance and fell after the defective railing moved
when he grabbed it and that he did not slip on any ice
or snow that the defendant had neglected to remove.
Furthermore, his counsel argued to the jury in both
his opening statement and closing argument that the
plaintiff’s fall was caused by the defective railing. The
plaintiff’s counsel also made clear to the court both
when objecting to the defendant’s request to add a
special defense based on the ongoing storm doctrine
and when arguing against the defendant’s proposed
ongoing storm charge that the plaintiff’s case was prem-
ised solely on the defective railing. When the defen-
dant’s counsel argued that the allegation in the com-
plaint that the defendant ‘‘failed to erect signs, barriers
or otherwise isolate the icy area of the porch and its
railings’’ implicated the ongoing storm doctrine, the
plaintiff moved to amend the complaint to remove that
allegation and his counsel correctly noted that the plain-
tiff had presented no evidence in support of that allega-
tion so there was no basis to submit it to the jury.
The defendant’s counsel even acknowledged that if that
allegation was removed from the case there would be
no need to plead a special defense based on the ongoing
storm doctrine.
Because the plaintiff never claimed that the defen-
dant breached its duty of care by failing to remove ice
and snow from the porch and/or stairs and, instead,
claimed solely that the defective railing (and the defen-
dant’s failure to maintain and repair the railing) caused
his fall, the ongoing storm doctrine, which is about
duty, not causation, was inapplicable. See Kraus v.
Newton, supra, 211 Conn. 197–98; Belevich v. Renais-
sance I, LLC, supra, 207 Conn. App. 125. Specifically,
the liability issue the jury had to resolve was whether
the plaintiff’s fall was caused by the defective railing,
the accumulated snow or ice, or the plaintiff’s own
carelessness. Whether the snow and ice was caused
by an ongoing storm or a previous storm simply was
irrelevant to the resolution of this issue.
This is not to say that the evidence of ice and snow,
including the evidence introduced by the defendant that
the plaintiff initially blamed his fall on the ice, was
irrelevant. To the contrary, such evidence was highly
relevant, but it was relevant only as to what caused the
plaintiff’s fall, not as to whether the defendant had a
duty to clear or treat the snow and ice in light of an
ongoing storm. Thus, although the defendant was free
to argue to the jury that the plaintiff could not prevail
because his injuries were caused by the ice and snow,
not the defective railing, that causation argument does
not implicate the ongoing storm doctrine.
The fact that the defendant pleaded the ongoing
storm doctrine as a special defense makes no difference
to our analysis. Just because the defendant pleaded the
special defense of an ongoing storm does not mean
that the court should have instructed the jury on the
doctrine. Courts are permitted to instruct juries only
when the proposed instructions are supported by the
evidence. See Godwin v. Danbury Eye Physicians &
Surgeons, P.C., 254 Conn. 131, 139, 757 A.2d 516 (2000)
(‘‘trial court should instruct the jury in accordance with
a party’s request to charge if the proposed instructions
are reasonably supported by the evidence’’). Here, as
explained in the preceding paragraph, the ongoing
storm doctrine was irrelevant to the plaintiff’s case or
the issue of causation, and, therefore, an instruction on
the doctrine could not reasonably have been supported
by the evidence. Thus, because the ongoing storm doc-
trine was inapplicable, the jury should neither have
been instructed on it nor asked interrogatories about
it even though the defendant asserted the doctrine as
a special defense. See id.
Accordingly, because the plaintiff never pursued a
claim that the defendant breached its duty of care by
failing to remove ice and snow and, instead, alleged
that a preexisting defect unrelated to the ongoing storm
caused his fall, the ongoing storm doctrine has no appli-
cation in the present case. See Kraus v. Newton, supra,
211 Conn. 197–98. Consequently, the court erred when
it instructed the jury on the doctrine. See Thames River
Recycling, Inc. v. Gallo, 50 Conn. App. 767, 774, 720
A.2d 242 (1998) (jury instructions must ‘‘correctly adapt
the law to the case in question and . . . provide the
jury with sufficient guidance’’ (internal quotation marks
omitted)). For this same reason, the court’s inclusion
of the ongoing storm doctrine in the jury interrogatories
was error.
II
We next consider whether the court’s ongoing storm
instruction and interrogatories were harmful. ‘‘[N]ot
every error is harmful. . . . [B]efore a party is entitled
to a new trial . . . he or she has the burden of demon-
strating that the error was harmful. . . . An instruc-
tional impropriety is harmful if it is likely that it affected
the verdict. . . . [W]e consider not only the nature of
the error, including its natural and probable effect on
a party’s ability to place his full case before the jury,
but the likelihood of actual prejudice as reflected in
the individual trial record, taking into account (1) the
state of the evidence, (2) the effect of other instructions,
(3) the effect of counsel’s arguments, and (4) any indica-
tions by the jury itself that it was misled. . . . The
inclusion of an inapplicable doctrine may be harmful
if it confuses and misleads the jury . . . .’’ (Citations
omitted; internal quotation marks omitted.) Kos v. Law-
rence + Memorial Hospital, 334 Conn. 823, 845, 225
A.3d 261 (2020). Similarly, the plaintiff must prove that
the court’s ongoing storm interrogatories prejudiced
him. Champeau v. Blitzer, supra, 157 Conn. App. 210.
The plaintiff argues that the court’s erroneous
instruction and interrogatories were harmful because
they misled the jury by making an irrelevant issue ‘‘a
predominate feature of the case.’’ He further argues
that the wording of the instruction and interrogatories
‘‘misled the jury into believing that the defendant’s negli-
gence as to the defective railing had to be the sole
proximate cause in order to permit a plaintiff’s verdict.
The trial court’s ongoing storm instructions repeatedly
intoned that recovery would be ‘barred’ if the storm
proximately caused the injuries . . . .’’4 (Citations
omitted.) We agree with the plaintiff.
First, by instructing the jury on a doctrine that was
irrelevant to the case, the court likely misled and con-
fused the jury. See Faulkner v. Reid, 176 Conn. 280,
281, 407 A.2d 958 (1978) (‘‘jury can only be confused
and misled by interjecting into their deliberations a
doctrine inapplicable to the evidence as a matter of
law’’). This confusion was compounded by the court’s
decision to have the jury answer questions about the
ongoing storm doctrine first and then instructing the
jury that if it determined that the ongoing storm was
the proximate cause of the plaintiff’s injuries, it should
not answer any other interrogatories and should return
a defendant’s verdict.
Second, the jury likely was confused and misled by
the court’s actual instruction on the ongoing storm doc-
trine. The instruction three times told the jury to con-
sider whether the ongoing storm was the proximate
cause of the plaintiff’s injuries. First, the court began
its instruction by telling the jury: ‘‘If you find that it
was the ice that was the proximate cause of the fall
and not the alleged claims of a defective railing as
alleged by the plaintiff, you must consider whether
the defense of ongoing storm is applicable.’’ (Emphasis
added.) Then, after telling the jury that the defendant
contended that the ongoing storm was the proximate
cause of the plaintiff’s fall, the court instructed the jury
that if it determined ‘‘that there was an ongoing storm
and that the plaintiff’s fall and subsequent injuries and
damages were proximately caused . . . as a result of
the storm, which placed ice on the porch and stairs
that were the proximate cause of the injuries,’’ the jury
had to apply the ongoing storm doctrine. (Emphasis
added.) Consistent with these instructions, the interrog-
atories the court submitted to the jury asked whether
there was an ongoing storm at the time of the plaintiff’s
fall and whether ‘‘the defendant proved the icy condi-
tion from the ongoing storm was the proximate cause’’
of the plaintiff’s fall. (Emphasis added.)
As described in detail in part I of this opinion, this
instruction was an incorrect statement of the law
because it told the jury that the existence of an ongoing
storm impacted its causation analysis; the doctrine
relates solely to duty, however, which was not at issue
in the case. See Kraus v. Newton, supra, 211 Conn.
197–98 (ongoing storm doctrine relates to defendant’s
duty of care to ‘‘exercise reasonable diligence in remov-
ing dangerous accumulations of snow and ice,’’ not to
cause of plaintiff’s injuries); Cooks v. O’Brien Proper-
ties, Inc., 48 Conn. App. 339, 343, 710 A.2d 788 (1998)
(defendant’s proposed instruction, which stated that,
‘‘[i]f you find that the plaintiff fell during an ongoing
storm of freezing rain, sleet and/or snow, and that the
ice or snow caused the fall, then you must find for the
defendant,’’ incorrectly stated holding of Kraus
(emphasis altered; internal quotation marks omitted)).
Such an error likely confused the jury by misleading
it into thinking that whether the storm was ongoing
impacted its analysis of what factors proximately
caused the plaintiff’s injuries.
Moreover, the court’s repeated reference in the
charge to ‘‘the’’ proximate cause and its suggestion that
the jury had to find either the railing or the ongoing
storm to be the proximate cause of the plaintiff’s injur-
ies was incorrect and likely misleading. By telling the
jury that the ongoing storm doctrine was implicated if
it found ‘‘that it was the ice that was the proximate
cause of the fall and not the alleged claims of a defective
railing as alleged by the plaintiff,’’ the court essentially
told the jury that there could be only a single proximate
cause for the plaintiff’s fall and that that proximate
cause was either the ongoing storm or the defective
railing but not both. Such an instruction ignores the
fact that an injury can have more than one proximate
cause; see Coburn v. Lenox Homes, Inc., 186 Conn.
370, 383, 441 A.2d 620 (1982); and that, in the present
case, it was possible that the plaintiff’s fall was caused
by both the icy porch and the defective railing. By
instructing the jury to the contrary, it is likely that the
court misled the jury into thinking that it had to return
a verdict for the defendant if it concluded that the
plaintiff’s fall was caused by the ongoing storm, even
if it also concluded that the defective railing contributed
to the fall. We have, on a number of occasions, con-
cluded that instructing a jury to determine if negligence
is the proximate cause, as opposed to a proximate
cause, of a party’s injuries misleads a jury. See Cham-
peau v. Blitzer, supra, 157 Conn. App. 212–13 (interrog-
atory that used language of ‘‘ ‘the’ proximate cause,’’
instead of ‘‘ ‘a’ proximate cause,’’ gave jury ‘‘ ‘misleading
impression that it had to find that [the defendants’]
breach of the standard of care was the sole proximate
cause of [the decedent’s] death’ ’’ (emphasis added));
Barksdale v. Harris, 30 Conn. App. 754, 757–58, 622
A.2d 597 (new trial required because court’s repeated
use of ‘‘ ‘the proximate cause,’ ’’ instead of ‘‘ ‘a proxi-
mate cause,’ ’’ could have misled jury (emphasis
added)), cert. denied, 225 Conn. 927, 625 A.2d 825
(1993).
The defendant argues that these cases are inapposite
to the present case because in those cases the concern
was whether the incorrect instruction improperly
heightened the plaintiff’s burden of proof by requiring
the plaintiff to prove that the defendant’s negligence
was the sole proximate cause and not a proximate cause
of the plaintiff’s damages. Here, the instruction at issue
related to the defendant’s special defense, as to which
it had the burden of proof. Consequently, the defendant
argues that the court’s reference to the storm being
‘‘the proximate cause’’ meant that the jury had to deter-
mine that the storm was the sole proximate cause for
the defendant to prevail. As a result, the defendant
argues, the instruction and corresponding interrogato-
ries could not have harmed the plaintiff. We are not
persuaded.
The court’s instruction did not tell the jury to decide
if the ongoing storm was the proximate cause of the
plaintiff’s injuries as a standalone determination.
Instead, the court expressly linked that determination
with a determination of whether the defective railing
was the proximate cause. The harm to the plaintiff is
that the court essentially told the jury to choose
between two potential proximate causes.
The defendant also argues that the court’s erroneous
instructions and interrogatories do not require reversal
because they were corrected by the court’s general
causation instruction, which repeatedly instructed the
jury that the plaintiff needed to prove only that the
defendant’s negligence was ‘‘a substantial factor in
causing the resulting injury or loss’’; (emphasis added);
and told the jury that ‘‘the defendant’s conduct can be
a proximate cause of an injury if it is not the only
cause or even the most significant cause of the injury,
provided that it contribute[d] materially to the produc-
tion of the injury, and, thus, [was] a substantial factor
in bringing it . . . about.’’
The defendant argues that the circumstances in the
present case are similar to those in Phelps v. Lankes,
74 Conn. App. 597, 813 A.2d 100 (2003). In Phelps, this
court concluded that reversal was not required despite
the trial court’s charging the jury that the plaintiff had
to prove that the defendant’s negligence was ‘‘the proxi-
mate cause of the injuries claimed.’’ (Emphasis added;
internal quotation marks omitted.) Id., 603. We reached
that conclusion because the trial court’s single incorrect
statement in its causation instruction was followed
immediately thereafter, in the same instruction, by the
court’s twice instructing the jury that the plaintiff
needed to prove that the defendant’s negligence was
‘‘a substantial factor’’ in causing the plaintiff’s injuries.
(Emphasis omitted.) Id. In light of the entire instruction,
this court concluded that, ‘‘[d]espite the challenged
instruction, the court’s charge as a whole was not
improper.’’ Id.
The defendant’s reliance on Phelps is misplaced. In
the present case, the court’s erroneous instruction was
given independent of its general causation instruction.
In fact, its juxtaposition to the court’s general causation
instruction is significant. The court began its ongoing
storm instruction after instructing the jury generally on
causation and on the defendant’s special defense that
the plaintiff’s injuries were caused by his own negli-
gence. After discussing how to award damages if the
jury concluded that both the defendant’s negligence
and the plaintiff’s negligence were proximate causes of
his injuries, the court concluded this part of its charge
by correctly stating: ‘‘If you find that both parties were
negligent and the negligence of each proximately
caused the injuries, you must reduce your award in
accordance with this comparative negligence rule.’’
The court then told the jury that it was going to talk
about the ongoing storm defense. It instructed the jury:
‘‘If you find that it was the ice that was the proximate
cause of the fall and not the alleged claims of a defective
railing as alleged by the plaintiff, you must consider
whether the defense of ongoing storm is applicable.’’
The manner in which the court instructed the jury
regarding the ongoing storm doctrine was in stark con-
trast to how it instructed the jury regarding causation
in general and as related to comparative negligence. As
to those charges, the court instructed the jury that there
could be more than one proximate cause. When it came
to the ongoing storm doctrine, though, the court
instructed the jury that it had to determine whether the
ice or the railing was ‘‘the’’ proximate cause. Thus, it
is likely that the jury was misled into believing that the
proximate cause analysis is different when the ongoing
storm doctrine is at issue. Further, this erroneous guid-
ance existed in both the instructions and the interroga-
tories. Thus, Phelps is inapposite to the present case.
The present case is closer to Champeau v. Blitzer,
supra, 157 Conn. App. 212, in which this court held that
the court’s incorrect use of ‘‘ ‘the’ proximate cause’’ in
the jury interrogatories ‘‘was exacerbated by the jury
charge in which the trial court alternated between refer-
ences to ‘the’ proximate cause and ‘a’ proximate cause
. . . .’’ The court concluded that the jury was misled by
the charge even though the court used ‘‘ ‘the’ proximate
cause’’ only twice in the whole charge. Id. Specifically,
this court held: ‘‘Although in the present case, there
were only two instances in the charge to the jury that
were improper, as we previously indicated, those errors
were exacerbated by an interrogatory completed by
the jury that also contained the improper standard for
proximate cause. Unlike in Phelps, which involved only
one instance of an improper instruction, the jury charge
in the present case was likely to have had a deleterious
effect, confusing the jury as to what the appropriate
standard was for proximate cause.’’ Id., 213. The same
is true in the present case.
Accordingly, because the court likely confused and
misled the jury by incorrectly instructing it on the ongo-
ing storm doctrine, as well as the role that causation
played with respect to the doctrine, we conclude that
such errors were harmful.
III
Finally, we address the defendant’s alternative
grounds for affirmance. The defendant argues that the
court’s instructional error was not harmful because the
plaintiff failed to prove two other essential elements of
his claim and failed to submit necessary expert evidence
in support of his claim. Specifically, the defendant
claims that the plaintiff failed (1) to introduce evidence
that the railing was defective, (2) to present expert
testimony as to the standard of care regarding railings,
and (3) to prove that the defendant had notice of the
alleged defect. We are not persuaded.
First, the plaintiff clearly introduced evidence that
the railing was defective because he testified that two
screws were missing from where the railing connected
to the building and that the top of the railing was rotten.
The plaintiff further testified that, due to those defects,
the railing moved when he grabbed it. That testimony
was enough for the jury to conclude that the railing
was defective. Second, the plaintiff was not required
to introduce expert testimony as to the standard of care
for railings because such knowledge is within the ken
of an average juror. See Way v. Pavent, 179 Conn. 377,
380, 426 A.2d 780 (1979) (‘‘[t]he trier of fact need not
close its eyes to matters of common knowledge solely
because the evidence includes no expert testimony on
those matters’’); see also Bader v. United Orthodox
Synagogue, 148 Conn. 449, 454, 172 A.2d 192 (1961)
(‘‘[e]xpert testimony was not required to support the
claim of the plaintiff that the absence of a proper or
suitable porch railing was a structural defect and there-
fore constituted . . . negligence’’). Finally, the plaintiff
also introduced sufficient evidence for the jury to con-
clude that the defendant had constructive notice of the
defective railing. The plaintiff testified that the railing
was defective and that it had been defective for twelve
years, and the defendant’s principal testified that he
routinely inspected the railings at the building. On the
basis of this evidence, the jury reasonably could have
concluded that the defendant had constructive knowl-
edge of the defect. See Pollack v. Gampel, 163 Conn.
462, 468, 313 A.2d 73 (1972) (plaintiff can establish
constructive notice by showing that, if defendant had
‘‘exercised a reasonable inspection of the premises, [the
defendant] would have discovered [the defect]’’). There-
fore, none of these claims undermines our conclusion
that the court’s instructional error was harmful and that
reversal is thus required.
In sum, the court erred in instructing the jury on the
inapplicable ongoing storm doctrine and in submitting
to the jury interrogatories regarding the doctrine, and
such errors were harmful because they likely confused
and misled the jury. Accordingly, reversal is required.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion ELGO, J., concurred.
1
The plaintiff’s complaint also originally named Verdura Building, LLC,
as a defendant to the underlying action. On July 29, 2019, the complaint
was withdrawn as to that party. Accordingly, Verdura Building, LLC, did
not participate in this appeal, and, in this opinion we refer to Verdura
Construction, LLC, as the defendant.
2
The plaintiff also claims that the court erred when it (1) gave the jury
an incorrect instruction on proximate cause and (2) refused to grant the
plaintiff leave to amend his complaint. We address the court’s proximate
cause instruction not as a separate claim but as part of our analysis as to
why the court’s ongoing storm instruction and jury interrogatories were
harmful. Because we conclude that the judgment must be reversed because
of the court’s instructional error, we need not consider the plaintiff’s claim
regarding his motion to amend his complaint.
3
Under the ongoing storm doctrine, plaintiffs cannot recover damages
for injuries that resulted from ice and snow and that occurred during or a
reasonable time after a winter storm because property owners are allowed
to wait until the end of such a storm before removing snow and ice. See
Kraus v. Newton, 211 Conn. 191, 197–98, 558 A.2d 240 (1989). The nuances
of this doctrine will be discussed subsequently in this opinion.
4
The plaintiff further claims on appeal that the court’s proximate cause
instruction suffered from the same deficiency. In response, the defendant
argues that the plaintiff waived any objection to the proximate cause instruc-
tion by not objecting to it and that the instruction overall set forth a correct
statement of the law. Because we conclude that the ongoing storm instruc-
tion and interrogatories were given in error, and because they misstated
the law of proximate cause, we need not address the plaintiff’s claim as to
the court’s general proximate cause instruction.