ConcurrenceOcasio v. Verdura Construction, LLC

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OCASIO v. VERDURA COSTRUCTION, LLC—CONCURRENCE

FLYNN, J., concurring in part and dissenting in part.
I agree that the second interrogatory submitted to the
jury may have been problematic. It read: ‘‘Do you find
by a preponderance of the evidence that the defendant
proved the icy condition from the ongoing storm was
the proximate cause, as I have defined that term for
you, of the fall and damages sustained by the plaintiff?’’
Under our law, in the ordinary negligence claim, a plain-
tiff does not have to prove there is only one proximate
cause of injury. There can be more than one proximate
cause, so long as each contributing cause is a substan-
tial causal factor and a cause in fact, meaning that the
injury would not have happened without it. Because
there was evidence that the railing on the stairs in
question was defective and collapsed when the plaintiff,
Luis Ocasio, tried to use it, the plaintiff was not fore-
closed from recovery merely because the jury might
find that the ice was also a contributing cause and there
was no duty to remove it on the part of the defendant
Verdura Construction, LLC, while the storm that pro-
duced it was still ongoing. This is dispositive of the
case because it is reasonably possible that the jury was
misled. I would end our opinion there. I concur in the
reversal of the judgment on that ground.
I part company with the majority opinion because it
goes too far when it states that 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 presented 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.’’ This conclusion does not
take into account the defendant’s evidence of a different
cause, namely, the plaintiff’s medical records, which
reflect his accounts that his injury occurred as ‘‘he was
walking up the stairs when he slipped on the ice and
fell to the ground, injuring his left leg’’ and that he
‘‘slipped on [an] icy step . . . .’’ Neither of these
records makes any reference to a broken railing as a
cause of the plaintiff’s fall and injury. Whether the ongo-
ing storm doctrine was applicable or relevant was not
just dependent on the plaintiff’s evidence but on all
of the evidence in the case, including the defendant’s
evidence. The plaintiff’s complaint alleged that the
defendant ‘‘failed to erect signs, barriers or otherwise
isolate the icy area of the porch and its railings.’’ The
plaintiff sought to delete that allegation by amending
his complaint. It was a matter of the court’s discretion
whether it would permit a late amendment one day
into the trial and after everyone was on notice of the
defendant’s premarked exhibits and the theory of
defense on which the defendant’s case had been pre-
pared. The court did not permit a late amendment to
the complaint. The alleged failure of the defendant to
‘‘isolate the icy area’’ remained in the plaintiff’s com-
plaint. I thus do not agree that the analysis or conclu-
sions concerning the issue of the ongoing storm doc-
trine are appropriate or necessary to the disposition of
this appeal.
For the foregoing reasons, I concur in the result
reached and respectfully dissent in part.