Klein v. Quinnipiac University ( 2019 )

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KLEIN v. QUINNIPIAC UNIVERSITY—DISSENT
BISHOP, J., dissenting. In this premises liability
action involving serious physical injuries, the plaintiff,
Daniel Klein, asserts two claims on appeal: first, that
the trial court abused its discretion by permitting a
witness to give opinion testimony without adequate
foundation, and second, that the court improperly
refused to instruct the jury on the definition of and
duties owed to a licensee upon a possessor’s land. The
majority concludes that the court properly refused to
give such instruction. Alternatively, the majority con-
cludes that, even if the court’s instruction was incorrect,
the error did not harm the plaintiff. The majority there-
fore finds no reversible error in the court’s instruction to
the jury and, consequently, concludes that the plaintiff’s
evidentiary claim is barred by application of the general
verdict rule. I respectfully disagree.
A pivotal issue at trial was the legal status of the
plaintiff on the property of the defendant, Quinnipiac
University. The plaintiff asserted that he was there with
the permission of the defendant; the defendant claimed,
in response, that the plaintiff was a mere trespasser.
The trial court determined, as a matter of law, that the
plaintiff was a trespasser and, therefore, declined to
instruct the jury with respect to the duties owed to
licensees. I conclude that this was reversible error. In
my view, there was adequate evidence adduced at trial
for the jury to conclude that the plaintiff had entered
the defendant’s property with the defendant’s implied
permission, and, accordingly, the trial court erred in
refusing to give the requested licensee instruction.1 In
doing so, the court, in essence, directed a verdict against
the plaintiff, thereby denying him the opportunity to
have his claims fairly decided by a jury of his peers. In
my view, this instructional error necessarily prejudiced
the plaintiff and, therefore, requires reversal and an
order remanding the matter for a new trial. Because
the issue of the admissibility of the opinion testimony
regarding the plaintiff’s speed may arise on retrial, I
would also reach the plaintiff’s evidentiary claim and
conclude that this lay opinion testimony was improperly
admitted because the witness rendering the opinion
lacked an adequate factual foundation.
The underlying facts, which the jury reasonably could
have found, are, in the main, undisputed, with one
exception regarding the purpose of a guardhouse on
the defendant’s premises. On July 30, 2014, the plaintiff
and a friend, Richard Lebov, both experienced bicy-
clists, went for an extended bicycle ride that ended on
the defendant’s York Hill campus in Hamden (campus),
which, being situated on a hill, provides a nice view of
New Haven and Long Island Sound.2 The plaintiff and
Lebov entered the campus via an access road from
Sherman Avenue and proceeded onto the campus. At
the time in question, this entrance was not gated, and
there were no ‘‘no trespassing’’ signs posted anywhere
around the campus or any other signs indicating that
access to the campus was restricted in any way. In
short, the circumstances were such as to lead a reason-
able person approaching the entrance to the defendant’s
campus from Sherman Avenue to believe that the prem-
ises were open to the public without restriction.
The access road from Sherman Avenue terminates
well into the interior of the campus, where it intersects
with another campus road. At this point, lane use arrows
in the right travel lane of the access road indicate that
traffic may either proceed straight or turn right. Both
routes lead to the top of the campus, where several
dormitories and a student center are located. The plain-
tiff and Lebov turned right at this intersection to con-
tinue their ride to the top of the campus.
Across from the intersection at which the plaintiff
and Lebov turned right is a road that leads directly
to the dormitory area of the campus. Situated at the
entrance to this road, in the median, is a guardhouse
staffed at all times by a public safety officer. The guard-
house is flanked on both sides by two yellow painted
speed bumps. A sign posted on the front of the guard-
house states that ‘‘all vehicles must stop and be regis-
tered.’’ It is noteworthy that the sign at the guardhouse
was directed only to vehicles and that, at the time in
question, there were no signs posted requiring that
users of the roadway coming from the Sherman Avenue
entrance proceed across the intersection to the guard-
house instead of turning right as did the plaintiff and
Lebov.
The route to the right of the intersection, taken by
the plaintiff and Lebov, leads past a wind farm before
connecting with the other end of the guardhouse road
at the top of the hill. As with the Sherman Avenue
entrance and the access road, there were no signs
restricting traffic from taking the road leading past the
wind farm. Nor were there any signs posted indicating
that this road was one-way or that bicyclists or pedestri-
ans using the road were going against the flow of traffic.
Although there was a vertical swing arm gate located
at some point along this road, the arm was in the upright
position at the time in question. The open position of
the gate’s arm certainly does not suggest that travelers,
be they students, staff, or visitors on that road, were
unwelcome.
When the plaintiff and Lebov reached the intersection
and turned right along the road up the hill toward the
wind farm,3 the safety officer on duty, Juan Melendez,
observed them but remained inside the guardhouse.
Also, he did not attempt to alert the other officer on
duty to their presence. This inaction by Melendez sup-
ports the plaintiff’s view that it was not part of Melen-
dez’ duty to screen, generally, visitors to the campus
who did not seek access via the guarded roadway to
the dormitories. Indeed, when the plaintiff and Lebov
had taken a bicycle ride along a similar route on the
campus the previous year, no one had attempted to
stop them, and there had been nothing to suggest in
any manner that their presence had been unwelcome.4
After a minute or two, Melendez exited the guard-
house to survey the area, as he was expecting to see
the plaintiff and Lebov come back. While standing in
front of the guardhouse surveying the area, Melendez
‘‘heard a noise’’ and ‘‘instinctively’’ turned to his right,
whereupon he observed the front wheel of the plaintiff’s
bicycle hit the second speed bump, causing the plaintiff
to be thrown into the air over his handlebars and to
hit the ground. The plaintiff sustained serious physical
injuries as a result.5
The plaintiff commenced the present action by ser-
vice of process on the defendant on March 11, 2015.
In the operative second amended complaint filed on
October 24, 2017, the plaintiff alleged that the bottom
most speed bump in the egress lane of the guardhouse
road was in a dangerous, defective, and unsafe condi-
tion and that he had been injured as a result of the
defendant’s negligence in allowing this dangerous con-
dition to exist, failing to inspect the speed bump to
ensure that it was in a reasonably safe condition, failing
to remedy the condition, and failing to warn of the
condition.6 The defendant denied the plaintiff’s allega-
tion of negligence and raised the special defense of
contributory negligence. The matter was tried to a jury
beginning on April 16, 2018, but no interrogatories were
submitted to it.
At trial, Melendez testified that he had not seen the
plaintiff coming down the hill prior to the plaintiff’s
collision with the speed bump. Nevertheless, he was
permitted to testify, over the objection of the plaintiff’s
counsel, as to his opinion that the plaintiff’s speed going
down the hill was ten miles per hour, conservatively.
This estimate was in line with that provided by the
defendant’s expert witness, Christopher Juliano, who
opined that the plaintiff had been traveling at approxi-
mately 9.8 miles per hour at the time the accident
occurred.
Following the conclusion of the defendant’s case-
in-chief on April 19, 2018, the defendant moved for a
directed verdict. During argument on the defendant’s
motion, the defendant’s counsel argued that the only
conclusion that could be reached on the basis of the
evidence presented was that the plaintiff had been a
trespasser and that, consequently, the only duty that
the defendant owed was to refrain from intentionally
or recklessly injuring the plaintiff. The defendant’s
counsel, therefore, contended that, because the plaintiff
did not allege or prove that the defendant had intention-
ally or recklessly injured him, he could not prove neg-
ligence.
The plaintiff’s counsel countered that there was
ample evidence to support a conclusion that the plaintiff
had been a licensee, which he defined as ‘‘a person who
is privileged to enter or remain on land only by virtue
of the possessor’s consent, that is with the possessor’s
permission or with the possessor’s expressed or implied
consent.’’ More specifically, the plaintiff’s counsel
argued that the evidence demonstrated that the plaintiff
had had the implied consent of the defendant to be on
the campus. In support of this argument, the plaintiff’s
counsel pointed to the following evidence: the lack of
any ‘‘no trespassing’’ signs, the lack of any signs
restricting access to the campus to any particular cate-
gories of people, the lack of any signs directing visitors
to stop at the guardhouse to sign in, the arrows on the
street pointing in directions away from the guardhouse,
the upright position of the arm of the gate along the
road leading past the wind farm, Melendez’ testimony
that visitors without any affiliation with the defendant
were generally permitted unless they appeared suspi-
cious, and the lack of any gate at the entrance to the
campus.7
Although the plaintiff had been proceeding under a
theory of implied consent, the court, without explana-
tion, proceeded to summarize the law concerning
implied invitations. Citing the second edition of Ameri-
can Jurisprudence, the court stated: ‘‘An invitation may
be implied from dedication, customary use, or entice-
ment, allurement, or inducement to enter [or] mani-
fested by an arrangement of the premises or the conduct
of the owner or occupant . . . .’’ See 62 Am. Jur. 2d
464, Premises Liability § 92 (2018). The court went on
to note that this was consistent with Connecticut case
law indicating that, for the plaintiff to constitute an
invitee, ‘‘it must appear that [the plaintiff] was expressly
or impliedly invited to use the defendant’s premises,’’
which, according to the court, ‘‘[was] not the case here.’’
Nevertheless, the court deferred ruling on the defen-
dant’s motion for a directed verdict and immediately
moved on to a charge conference.
During the charge conference, and in spite of the
plaintiff’s unequivocal statement that he was claiming
to have been a licensee and his explicit disavowal of
any claim of invitee status, the court framed the issue
regarding the appropriate jury charge in terms of
‘‘whether there was an implied invitation,’’ citing the
principles it had previously noted in the context of the
defendant’s motion for a directed verdict. (Emphasis
added.) The court concluded that, ‘‘considering [those
principles], the charge . . . [that] is going to be giv[en]
is [the] trespasser charge only . . . .’’
Following trial, the jury returned a general verdict in
favor of the defendant, and the court rendered judgment
accordingly. This appeal followed.
I first address the plaintiff’s claim that the trial court
erred in refusing to instruct the jury regarding the defini-
tion of a licensee and the duties owed to a licensee by
a possessor of land. The plaintiff argues that the trial
court improperly conflated the concepts of implied invi-
tation and implied consent and that there was sufficient
evidence to support a finding that he had entered the
campus with the defendant’s implied consent. The
plaintiff, therefore, contends that it was an abuse of
discretion for the trial court to refuse to instruct the
jury on the definition of and the duties owed to a
licensee. The plaintiff further argues that the court’s
error was harmful because it was tantamount to direct-
ing a verdict in favor of the defendant. More specifically,
the plaintiff contends that, without a licensee instruc-
tion, the jury was left with no choice but to find that
he was a trespasser to whom the defendant owed a
duty only to refrain from intentionally or recklessly
injuring the plaintiff. I agree with the plaintiff.
‘‘A licensee is a person who is privileged to enter or
remain upon land by virtue of the possessor’s consent
. . . .’’ (Internal quotation marks omitted.) Laube v.
Stevenson, 137 Conn. 469, 473, 78 A.2d 693 (1951), quot-
ing 2 Restatement (First), Torts § 330 (1934). Although
such consent may be given by invitation—i.e., ‘‘conduct
[that] justifies others in believing that the possessor
desires them to enter the land’’; (emphasis added) 2
Restatement (Second), Torts § 332, comment (b)
(1965); mere ‘‘permission’’—i.e., ‘‘conduct justifying
others in believing that the possessor is willing that
they shall enter if they desire to do so’’; (emphasis
added) id.; will suffice. See Corcoran v. Jacovino, 161
Conn. 462, 466, 290 A.2d 225 (1971) (‘‘[m]ere permission,
as distinguished from invitation, is sufficient to make
[a] visitor a licensee’’). As the majority correctly
acknowledges, the great weight of authority indicates
that such invitation or permission may be given either
expressly or implicitly.
In the present case, there was no evidence adduced
at trial of the defendant’s having explicitly or implicitly
expressed a desire that the plaintiff enter its campus,
nor was there any evidence of the defendant’s having
explicitly expressed a willingness that the plaintiff
enter. Accordingly, I agree with the majority that the
jury reasonably could not have found the plaintiff to
be a licensee by virtue of any express or implied invita-
tion or by an express grant of permission. I disagree,
however, that there was insufficient evidence to sup-
port a finding that the defendant had tacitly permitted
the plaintiff to enter the campus.
As the majority notes, our appellate case law provides
little insight as to the proof necessary to establish
licensee status by implied permission. I therefore agree
that, in such circumstances, it is appropriate to look to
the Restatement for guidance. The commentary to § 330
of the Restatement (First) of Torts provides that, ‘‘[a]s
in all cases in which one person’s consent is important
as affecting the legal relations between him and
another, it is the manifestation of consent which is
decisive and not the state of mind which the possessor
intended to express.’’ (Emphasis added.) 2 Restatement
(First), supra, comment (c), p. 894. In other words, ‘‘the
decisive factor is the interpretation which a reasonable
man would put upon the possessor’s acts’’; (emphasis
added) id., comment (d), p. 894; not the possessor’s
unexpressed intentions or policies.
‘‘In determining whether a particular course of action
is sufficient to manifest a consent to enter the land,
regard must be had to all the surrounding circum-
stances.’’ Id. For example, ‘‘[i]f a railway company pre-
pares a paved or boarded path between the two plat-
forms of its station, it may or may not give passengers
reason to believe that the pathway is prepared for their
use. If there is no other means of communication pro-
vided between the two platforms, a passenger may rea-
sonably believe that the path is meant for his use. On
the other hand, if there is an overhead bridge or a
subway plainly visible, even though the pathway is not
blocked by a fence or railing, the passenger might not
be justified in regarding the path as prepared for him.’’
Id., pp. 894–95.
‘‘In determining this regard is to be had to customs
prevailing in the community. The well-established
usages of a civilized . . . community entitle everyone
to assume that a possessor of land is willing to permit
them to enter for certain purposes until a particular
possessor expresses unwillingness to admit them. . . .
[For instance] if there be a local custom for possessors
of land to permit others to enter it for particular pur-
poses, residents in that locality and others knowing
of the custom are justified in regarding a particular
possessor as conversant with it and, therefore, in con-
struing his neglect to express his desire not to receive
them as a sufficient manifestation of a willingness to
admit them.’’8 (Internal quotation marks omitted.) Id.,
p. 895.
Applying these principles in the context of the case
at hand, it is plain that there was sufficient evidence
adduced at trial to reasonably support a finding that the
plaintiff had been a licensee by virtue of the defendant’s
implied permission. As noted, at the time in question,
the Sherman Avenue entrance to the campus was not
gated, and there were no ‘‘no trespassing’’ signs posted
at the campus entrance or any signs signifying that
presence on the campus was restricted in any manner
or to any category of individuals. Although one of the
roads leading to the dormitories at the top of the campus
was guarded by a guardhouse, the other route to the
top of the campus taken by the plaintiff was not
guarded, and the lane use arrows on the access road
from Sherman Avenue suggested that entrants could
utilize this other route rather than the guarded road.
Additionally, there was no evidence of any signs along
the route taken by the plaintiff restricting access to
the top of the campus to certain categories of people.
Moreover, Melendez’ testimony that he took no action
to limit or even question the plaintiff upon seeing him
turn right at the intersection, or to seek assistance from
the other safety officer on duty elsewhere on the cam-
pus, supports the conclusion that the plaintiff’s pres-
ence on the campus was permitted. Finally, given the
plaintiff’s testimony that he had taken the same route
to the top of the campus the previous year without
any interference from the defendant’s agents, the jury
reasonably could have concluded that the prevailing
custom on the campus was to permit individuals not
associated with the defendant to enter the campus and
to ride, without restriction or interference, to the top
of the campus to enjoy the vista it affords.9 Given this
evidence, I have little difficulty in concluding that a
properly instructed jury could have determined that a
reasonable person in the plaintiff’s position justifiably
would have inferred from the surrounding circum-
stances that the defendant was willing to allow the
plaintiff to enter the campus and to proceed along the
route he took leading past the wind farm to the top of
the campus.
The majority’s conclusion to the contrary is, in my
view, flawed. Preliminarily, I note that the majority
appears to accept that, in some circumstances, the lack
of gates and ‘‘no trespassing’’ signs, without more, may
be sufficient to establish implied permission. See 2
Restatement (First), supra, § 330, comment (b), p. 893
(‘‘[a] mere failure to object to another’s entry may be
a sufficient manifestation of consent thereto if the pos-
sessor knows of the other’s intention to enter and has
reason to believe that his objection is likely to be effec-
tive in preventing the other from entering’’).10 Thus,
the majority’s position appears to be that there are
additional circumstances in the present case that render
the lack of such signs and gates insufficient to establish
the plaintiff’s status as a licensee. Although the majority
does not state explicitly what these additional circum-
stances are, it appears to rely heavily, if not exclusively,
on the fact that the plaintiff did not stop at the guard-
house that straddled the road leading directly to the
dormitories at the top of the campus and, instead, took
the route to the top of the campus that leads past the
wind farm. Ostensibly, the majority interprets the pres-
ence of the guardhouse as a manifestation of the defen-
dant’s unwillingness to permit persons who are not
affiliated with the defendant and have not checked in
at the guardhouse to enter into the top of the campus.
I respectfully disagree with this interpretation.
Although there was a sign posted on the front of the
guardhouse stating that ‘‘all vehicles must stop and be
registered,’’ there were no signs stating that people com-
ing into the campus by other means—for example, by
foot or on bicycle—must also check in at the guard-
house before going to the top of the campus. Nor were
there any signs requiring that entrants to the top of the
campus utilize the guardhouse road rather than the road
that leads past the wind farm. Given these circum-
stances, a reasonable person in the plaintiff’s position
may well have concluded that the only apparent pur-
pose of the guardhouse was to limit vehicular access
to the road that it guarded and that the presence of the
guardhouse therefore had no bearing on the defendant’s
willingness to allow individuals without vehicles to pro-
ceed along the route traveled by the plaintiff to the top
of the campus.11
I also respectfully disagree with the majority’s specu-
lative assertion that, if this court were to conclude that
the plaintiff in this case was a licensee, it essentially
would require much, if not all, private property to be
fenced, gated, and covered with ‘‘no trespassing’’ signs
in order to avoid conferring licensee status on mere
trespassers.12 As previously noted, whether an entrant
constitutes a licensee is a fact specific inquiry that
requires due consideration of all of the surrounding
circumstances. See 2 Restatement (First), supra, § 330,
comment (c). Thus, my conclusion that the lack of ‘‘no
trespassing’’ signs and gates was sufficient to warrant
a licensee instruction under the particular factual cir-
cumstances of the present case cannot reasonably be
construed as an indication that, in all premises liability
cases, the lack of such signs and gates renders an
entrant a licensee as a matter of law.
In sum, I conclude that the trial court erred in refusing
to instruct the jury on the definition of and the duties
owed to licensees. As the majority correctly notes, how-
ever, ‘‘before a party is entitled to a new trial [due to
an error in the trial court’s jury instructions] . . . he
or she has the burden of demonstrating that the error
was harmful.’’ (Internal quotation marks omitted.)
MacDermid, Inc. v. Leonetti, 328 Conn. 726, 749, 183
A.3d 611 (2018). In the present case, the plaintiff argues,
in essence, that the court’s refusal to provide the
requested licensee instruction was harmful because
‘‘[i]t was tantamount to directing a verdict for the defen-
dant . . . .’’ I agree.
The record reveals that there was no evidence pre-
sented at trial to indicate that the defendant had inten-
tionally injured the plaintiff or that it had engaged in
wilful, wanton, or reckless conduct so as to make it
liable for injuries to a trespasser. See Maffucci v. Royal
Park Ltd. Partnership, 243 Conn. 552, 558, 707 A.2d 15
(1998) (‘‘a possessor of land is under no duty to keep
his or her land reasonably safe for an adult trespasser,
but has the duty only to refrain from causing injury
to a trespasser intentionally, or by willful, wanton or
reckless conduct’’ [footnote omitted; internal quotation
marks omitted]). Consequently, the trial court, by
improperly instructing the jury only with respect to
the duties owed to trespassers, effectively directed a
verdict in the defendant’s favor.13 In my view, this neces-
sarily harmed the plaintiff because it deprived him of
a fair opportunity to have the jury carry out its constitu-
tional fact-finding function and determine his claims
on the basis of correct legal principles.14 See Tryon v.
North Branford, 58 Conn. App. 702, 716, 755 A.2d 317
(2000) (whether there was breach of duty of care is
question of fact to be decided by jury after considering
credibility and weight to be accorded evidence). I
respectfully disagree with the majority’s conclusion to
the contrary.
The majority also asserts that there was insufficient
evidence presented at trial to support a finding that the
defendant breached any duty owed to the plaintiff as
a licensee and that, therefore, any error in failing to
provide the requested licensee instruction was harm-
less. As the majority correctly notes, a land possessor
who actually or constructively knows of a licensee’s
presence on the premises must use reasonable care to
warn the licensee of dangerous conditions on the land
that the possessor knows of but that the possessor
cannot reasonably assume the licensee knows of or by
reasonable use of his or her faculties would observe.
See Morin v. Bell Court Condominium Assn., Inc., 223
Conn. 323, 327, 612 A.2d 1197 (1992). The majority notes
that speed bumps in general are a known hazard to
bicyclists and that the particular speed bump at issue
in the present case was plainly visible to the plaintiff.
Accordingly, it concludes that the plaintiff knew or had
reason to know of the speed bump and the risk involved
in riding his bicycle over it.
Respectfully, I believe this conclusion to be premised
on a fundamental misunderstanding of the nature of the
plaintiff’s claim.15 The majority construes the plaintiff’s
claim to be that the defendant’s premises were in a
dangerous condition by virtue of the mere existence of
the speed bump. The plaintiff made no such claim.
Rather, the plaintiff alleged in his complaint, and offered
evidence at trial to prove, that the improper manner
in which the speed bump was constructed rendered the
premises dangerous. Specifically, he claimed that the
speed bump was defective in that ‘‘the height of the
downhill side of the . . . speed bump was [five] inches
above grade, whereas the uphill height of the speed
bump was [one and five-eighths] inches above grade;
the speed bump profile was not uniform; the transition
from [the] speed bump to [the] roadway surface was
not smooth; [and] the speed bump, with its downhill
height of [five] inches, was unreasonably high for a
road with a 10 [percent] downhill grade.’’ Given the
technical nature of these alleged defects, the jury rea-
sonably could have concluded that they would not have
been obvious to the plaintiff, even if the speed bump
itself was plainly visible to him as he was riding down
the hill. Moreover, although there was no evidence pre-
sented that the defendant had actual knowledge of the
defective condition of the speed bump, the around-the-
clock presence of a safety officer at the guardhouse,
which is adjacent to the speedbump, is sufficient, in
my view, to charge the defendant with such knowledge.
In sum, I conclude that the trial court’s refusal to
give the plaintiff’s requested licensee instruction and
its decision to instruct only on the duties owed by a
possessor of land to a trespasser constitutes reversible
error. Because this error left the jury with no
‘‘untainted’’ route to the verdict, I do not find the general
verdict rule applicable in the present case. See Cava-
liere v. Olmsted, 98 Conn. App. 343, 347–48, 909 A.2d
52 (2006) (holding that general verdict rule did not apply
because, even if this court assumed that jury rejected
plaintiff’s allegations of negligence and found him con-
tributorily negligent, both of those determinations were
undermined by trial court’s failure to instruct jury
regarding proper standard of care, and, therefore, there
was no ‘‘untainted route’’ to verdict); Monterose v.
Cross, 60 Conn. App. 655, 661, 760 A.2d 1013 (2000)
(same).
Because I would reverse the judgment of the trial
court on the basis of the instructional error, the plain-
tiff’s claim of evidentiary error—that the trial court
improperly admitted Melendez’ testimony regarding his
estimation of the plaintiff’s speed—need not be
addressed. Nevertheless, because the issue could arise
on retrial, I briefly address it.
The following standard of review and legal principles
are relevant to the resolution of this claim. ‘‘Our stan-
dard of review regarding challenges to a trial court’s
evidentiary rulings is that these rulings will be over-
turned on appeal only where there was an abuse of
discretion and a showing by the [plaintiff] of substantial
prejudice or injustice. . . . Additionally, it is well set-
tled that even if the evidence was improperly admitted,
the [plaintiff] must also establish that the ruling was
harmful and likely to affect the result of the trial.’’ (Inter-
nal quotation marks omitted.) Bank of New York v.
Savvidis, 174 Conn. App. 843, 849, 165 A.3d 1266 (2017).
Pursuant to § 7-1 of the Connecticut Code of Evi-
dence, ‘‘[i]f a witness is not testifying as an expert, the
witness may not testify in the form of an opinion, unless
the opinion is rationally based on the perception of
the witness and is helpful to a clear understanding of
the testimony of the witness or the determination of a
fact in issue.’’ (Emphasis added.) Thus, although our
Supreme Court has stated that ‘‘lay witnesses are com-
petent to offer opinions on such matters as the speed
of an automobile . . . they may only testify on the
basis of observed facts.’’ (Citation omitted; emphasis
added.) Acampora v. Asselin, 179 Conn. 425, 427, 426
A.2d 797 (1980).
Here, it is undisputed that Melendez had not seen
the plaintiff riding down the hill toward the guardhouse;
he had only observed the plaintiff at the moment his
bicycle hit the second speed bump. Consequently, Mel-
endez’ opinion that the plaintiff had been traveling at
approximately ten miles per hour had no basis in
‘‘observed facts.’’ Indeed, his subsequent testimony
makes clear that Melendez’ opinion was not based on
his actual perception of the plaintiff but on his estima-
tion of how fast a hypothetical person traveling down
the hill would have been going: ‘‘[I]f you were asking
me if I knew how fast [the plaintiff] was going down
that hill, I can’t tell you that I saw him go down the
hill. But because I work there, I know the incline of
that hill, how steep it is. I could tell you approximately
how fast somebody would be able to go down that hill
on a bicycle.’’ (Emphasis added.) Thus, the trial court
erred in admitting Melendez’ opinion testimony.
Although it is unlikely that this error affected the result
of the trial in light of Juliano’s expert opinion testimony
that the plaintiff had been traveling at approximately
9.8 miles per hour, this error should not be repeated
in the event of a retrial.
In sum, I would reverse the judgment of the trial
court and remand the case for a new trial. Accordingly,
I respectfully dissent.
1
In his request to charge, the plaintiff requested that the court instruct
the jury that it was its responsibility to decide, on the basis of the evidence
presented, whether the plaintiff was a licensee or a trespasser. Included in
the plaintiff’s requested charge was a proper statement of the legal definition
of one who is a licensee and one who is a trespasser, and also a proper
statement of the law regarding the duties owed by a possessor of land to
a licensee and to a trespasser. On appeal, the plaintiff asserts that the court
incorrectly charged the jury by instructing it solely with regard to the duties
owed to a trespasser. From my perspective, this was a fatal error for either
of two reasons. First, as is evident from the majority and dissenting opinions
in this case, there was a sufficient factual dispute regarding the role of the
guardhouse vis-à-vis visitors to the campus to render the question of the
plaintiff’s status a factual one for the jury’s determination. Alternatively, if
the court determined that the facts essential to the determination of the
plaintiff’s status were not in dispute, it should have charged only on the
duties owed to a licensee. See Millette v. Connecticut Post Ltd. Partnership,
143 Conn. App. 62, 69 n.5, 70 A.3d 126 (2013) (‘‘Ordinarily, the status of one
who sustains injury while upon the property of another is a question of fact.
. . . Where, however, the facts essential to the determination of the plain-
tiff’s status are not in dispute, a legal question is presented.’’ [Internal
quotation marks omitted.]).
2
The plaintiff and Lebov had been bicycle riding together on a regular
basis over the course of twenty-five years, logging well over 20,000 miles.
3
There was no evidence adduced at trial to suggest that the plaintiff and
Lebov had decided to take the road to the right at the intersection in order
to avoid the guardhouse at the entrance to the guarded road. Indeed, they
both explicitly testified that they had not purposely avoided the guardhouse;
rather, they chose to follow the route they had previously taken in order
to pass by the wind farm. Moreover, the guardhouse straddling the road
leading directly to the student dormitories did not appear to relate, in any
way, to pedestrians, bicyclists, or those driving motor vehicles on campus
who did not seek to travel on the guarded road.
4
On the previous occasion, they had cycled into the campus and taken
the same road past the wind farm. On that occasion, they had circled around
counterclockwise past the dormitories before leaving the campus via a rear
access road. There had been no ‘‘no trespassing’’ signs, and the only gate
along their route had been up.
5
The plaintiff sustained a brain bleed and broke one of his femurs, a hip,
and four ribs. He required surgery to repair his femur.
6
The plaintiff also specifically alleged that he had been a business invitee
of the defendant. After the parties presented their evidence at trial, however,
the plaintiff’s counsel conceded that a business invitee instruction was not
warranted and, instead, requested an instruction on the duties owed by a
land possessor to a licensee. Although the plaintiff had not alleged in the
operative complaint that he had been a licensee, the defendant did not object
to the plaintiff’s requested instruction on that ground and the arguments
presented by counsel to the court concerned only whether the evidence
entitled the plaintiff to a charge related to the duties of care owed to
a licensee.
7
In addition to these specific claims made by the plaintiff, the court heard
or saw documentary evidence that should have made it apparent that the
guardhouse, about which there was a great deal of testimony, was not
situated in a manner to guard the campus against trespassers but served,
only, to limit and scrutinize vehicular traffic seeking access up the guarded
road to the dormitory area. In my view of the record, testimony related to
the guardhouse was minimally relevant to the issue of the plaintiff’s status
because the guardhouse was a substantial distance from the Sherman Ave-
nue entrance to the campus, and its only apparent purpose was to screen
vehicular traffic to the dormitory portion of the campus.
8
‘‘[W]here it is local custom for possessors of land to permit others to
enter their land for particular purposes, it is immaterial that the particular
person entering is not a member of the local community, or, if a member
of the local community, is ignorant of the custom.’’ 2 Restatement (First),
supra, § 330, comment (e), p. 896.
9
The majority asserts that there is no evidence in the record to indicate
that the defendant had been aware of the plaintiff’s presence when he rode
through the campus the previous year. The majority is mistaken. Although
there was no direct evidence of the defendant’s awareness, Melendez, the
public safety officer on duty at the time the plaintiff was injured, testified
at trial that he had been able to see the plaintiff riding up the road toward
the wind farm, and Barbara Barbuito, the assistant director of facilities for
the campus, testified that the guardhouse is staffed at all times by public
safety officers. Given this claim of constant surveillance, the jury reasonably
could have inferred from this evidence that, in general, any bicyclist traveling
up the road toward the wind farm would have been observed by whoever
was then on duty at the guardhouse on this date or at any earlier time.
10
This is not inconsistent with the observation in comment (b) to § 330
of the Restatement (First) of Torts that ‘‘[e]ven a failure to post a notice
warning the public not to trespass cannot reasonably be construed as an
expression of consent to the intrusions of persons who habitually and
notoriously disregard such notices.’’ (Emphasis added.) 2 Restatement
(First), supra, § 330, comment (b), p. 894. The clear implication of this
statement is that, in cases involving an entrant who does not habitually and
notoriously disregard ‘‘no trespassing’’ signs, the absence of such signs may
be a sufficient manifestation of consent to the entry.
11
The majority contends that there is nothing in the record to support
the conclusion that the ‘‘only apparent purpose of the guardhouse was to
limit vehicular access’’ to the dormitory portion of the campus. For this
contention, the majority relies on testimony from Melendez and Barbara
Barbuito regarding their respective understandings of the purpose of the
guardhouse, as well as testimony about a ‘‘verbal policy’’ regarding the entry
of individuals onto the campus who are not affiliated with the defendant.
See footnote 3 of the majority opinion. This reliance is misplaced. As pre-
viously noted, the decisive factor in determining the issue of a possessor’s
consent is the interpretation that a reasonable person would put upon the
possessor’s acts, not the possessor’s unexpressed intentions or policies. In
the present case, there is no evidence in the record to suggest that the views
and policies expressed in Melendez’ and Barbuito’s testimony were made
manifest. Consequently, this testimony is not relevant to the question of
how a reasonable person in the plaintiff’s position would have interpreted
the surrounding circumstances.
12
In making this assertion, I believe that the majority conflates the notion
of notice with prevention. The turning point on whether an entrant is wel-
comed or is a trespasser is whether the entrant has fair notice. That can
be provided, simply, with signs placed at the campus entrances. For example,
in the case at hand, a sign stating the following would make clear that the
campus is not generally open to the public: ‘‘The campus grounds are for
the use of the Quinnipiac University community and invited guests. The
public is welcomed to the campus only for events open to the public.’’ If
there had been such a sign at the Sherman Avenue entrance to the campus,
it is likely that this case and the underlying injuries that befell the plaintiff
would not have occurred.
13
In my view, at the close of evidence, the court had two choices. If the
court perceived that the evidence as to the plaintiff’s status was controverted
because of any ambiguity in the testimony of Melendez as to the scope of
his duties, it could have instructed the jury that it was its task, as the fact
finder, to determine whether the plaintiff was a trespasser or a licensee. If
the court had made this choice, it would then have been appropriate for
the court to provide the jury with detailed instructions on the definitions
of ‘‘licensee’’ and ‘‘trespasser’’ with corresponding instructions on the duties
owed by a possessor of land to a licensee and to a trespasser as requested
by the plaintiff.
If, on the other hand, the court determined that the facts were not in
dispute, it could have made a determination of the plaintiff’s status as a
matter of law. The court in the present case chose the latter course and
concluded as a matter of law that the plaintiff had been a trespasser. For
the reasons already noted, however, I believe that this determination was
both erroneous and fatal to the plaintiff’s opportunity to have his claim
fairly adjudicated by the jury.
14
Contrary to the majority’s suggestion, the harmfulness of the trial court’s
error is not ameliorated by the fact that the court also instructed the jury
regarding the duty owed to a constant trespasser. See footnote 11 of the
majority opinion. The duty owed to a constant trespasser only arises when
‘‘[a] possessor of land . . . knows, or from facts within his knowledge
should know, that trespassers constantly intrude upon a limited area thereof
. . . .’’ (Internal quotation marks omitted.) Morin v. Bell Court Condomin-
ium Assn., Inc., 223 Conn. 323, 333, 612 A.2d 1197 (1992). The majority
does not dispute that there was no evidence adduced at trial that trespassers
constantly intrude into the top of the campus. Therefore, to the extent that
the majority implies that the court’s constant trespasser instruction in some
way negates the harm caused by the court’s failure to instruct the jury with
regard to the definition of and duties owed to a licensee, I respectfully
disagree.
15
Moreover, in asserting that the court’s instruction, even if erroneous,
caused the plaintiff no harm, the majority takes up an issue not raised or
briefed by the appellee. As has been well established by our Supreme Court,
it is improper for this court, on review, to decide a case on a basis not
raised or briefed by a party on appeal. See Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 156 n.24, 84
A.3d 840 (2014) (‘‘[W]e have long held that, in the absence of a question
relating to subject matter jurisdiction, the [reviewing] [c]ourt may not reach
out and decide a case before it on a basis that the parties never have raised
or briefed. . . . To do otherwise would [unfairly] deprive the parties of an
opportunity to present arguments regarding those issues.’’ [Internal quota-
tion marks omitted.]).