Preview
DOCKET NO. FST-CV-19-6044154-S SUPERIOR COURT
JOHN LASKO J.D. OF NORWALK/STAMFORD
VS. AT STAMFORD
CAROLE BROWN, ET AL NOVEMBER 27, 2023
DEFENDANT’S PROPOSED JURY INSTRUCTIONS
In accordance with the Court’s request, the defendant provides their proposed jury
instructions.
Burden of Proof - Claims
The party making a claim has the burden of proof with respect to that claim. Thus, the
plaintiff has the burden of proving each essential element of the cause of action upon which the
plaintiff relies. 1 will review those elements with you in a moment. The defendants do not have to
present evidence to disprove the plaintiff's claim.
Authorit - Civil Ju Instructions 2.6-1
Burden of Proof - Damage:
Our laws impose certain rules to govern the award of damages in any case where liability is
proven. Just as the plaintiff has the burden of proving liability by a fair preponderance of the
evidence, he has the burden of proving his entitlement to recover damages by a fair preponderance of
the evidence. To that end, the plaintiff must prove both the nature and extent of each particular loss
or injury for which he seeks to recover damages and that the loss or injury in question was
proximately caused by the defendant's negligence. You may not guess or speculate as to the nature or
extent of the plaintiff's losses or injuries. Your decision must be based on reasonable probabilities in
light of the evidence presented at trial. Injuries and losses for which the plaintiff should be
compensated include those he has suffered up to and including the present time and those he is
reasonably likely to suffer in the future as a proximate result of the defendant's negligence.
Negligence, as I previously instructed you, is a proximate cause of a loss or injury if it is a substantial
factor in bringing that loss or injury about.
Authority - C il Jui Instructions §3.4-1
Separation of Liability and Damages
Ina general sense, a civil trial such as this has two issues: liability and damages. You will
reach the issue of damages only if you find liability in favor of the plaintiff. If you find that liability
is established, you will have occasion to apply my instructions concerning damages. If you find that
liability has not been established, then you will not consider damages. The fact that | am instructing
you on both liability and damages should not be taken by you as any indication as to how the court
would decide liability. Rather, my charge includes both liability and damages because I must give
you instructions on all the issues in the case.
Authori - Civil Jury Instructions §2.7-1
Proximate Cause
The plaintiff must prove that any (injury/harm) for which (he/she/it) seeks compensation from
the defendant was caused by the defendant. The first issue for your consideration is, "Was the
plaintiff (injured/harmed)?" If the answer is no, you will render a verdict for the defendant. If the
answer is yes, you will proceed to the second issue, which is “Were such (injuries/harm) caused by
the negligence of the defendant?" This is called "proximate cause."
Negligence is a proximate cause of an injury if it was a substantial factor in bringing the
(injury/harm) about. In other words, if the defendant's negligence contributed materially and not
just in a trivial or inconsequential manner to the production of the (injury/harm), then (his/her/its)
negligence was a substantial factor. If you find that the defendant's negligence was not a
substantial factor in bringing about the (injury/harm) suffered by the plaintiff, you will render a
verdict in favor of the defendant. However, if you find that the defendant's negligence was a
substantial factor in causing (injury/harm) to the plaintiff, you will consider the (allocation of
liability, assessment of damages, etc.).
Authority - Civil Jury Instructions §3.1-1
Defendants’ Specification of Negligence
The special defense filed by the defendant alleges a number of specific ways in which the
plaintiff was negligent. I will read these specific allegations to you shortly. To establish that the
plaintiff was negligent, it is not necessary for the defendant to prove all of these specific allegations.
The proof of any one of these specific allegations is sufficient to prove negligence.
The defendant has alleged that the plaintiff was negligent in that:
4. In that he failed to keep and maintain a reasonable and proper lookout;
b. In that he failed to make reasonable and proper use of his senses and his faculties;
C. In that he failed to take the necessary and proper precautions to observe the conditions
then and there existing;
d In that he failed to be watchful of his surroundings;
e. In that he used a railing for a purpose not intended;
f. In that he failed to use reasonable care for his own safety commensurate with the
existing circumstances and conditions; and
& In that he failed to properly inspect said premises as required by the management
agreement.
Authority - Civil Jury Instructions §3.5-2
Plaintiff's Duty of Care
have previously instructed you that the defendant is under the obligation to exercise the care
which a reasonably prudent person would use under the circumstances. The plaintiff is also under
the same obligation. A plaintiff is negligent if the plaintiff does something which a reasonably
prudent person would not have done under similar circumstances or fails to do that which a
reasonably prudent person would have done under similar circumstances.
Authority - Civil Jury Instructions §3.5-3
Reasonable Care
In determining the care that a reasonably prudent person would use in the same
circumstances, you should consider all of the circumstances which were known or should have been
known to the defendant at the time of the conduct in question. Whether care is reasonable depends
upon the dangers that a reasonable person would perceive in those circumstances. It is common
sense that the more dangerous the circumstances, the greater the care that ought to be exercised.
Authori - Civil Jury Instructions §3.6-4
Defendant Does Not Guarantee Safety
It is not the law that the plaintiff is entitled to compensation merely because he is injured
while on the premises controlled by another. The defendant is not required to guarantee the safety of
all persons on the premises. Rather the defendant is only liable for the resulting injuries if the
plaintiff meets the burden to prove the necessary elements of a defective premises claim as I now
outline them for you.
Authori - Civil Jw Instructions §3.9-18
Plaintiff's Duty to Use Faculties
The defendant has raised a special defense and claims that the plaintiff did not make a proper
use of (his/her) senses or faculties to avoid the injury, did not keep a proper lookout, and was not
watchful. Under our law, the plaintiff is presumed to be in the exercise of due care; and if the
defendant makes a claim to the contrary, the burden is on the defendant to prove it. The defense is
that the plaintiff failed to use due care to look out for (his/her) own safety. That means that the
plaintiff was not acting as a reasonably prudent or careful person would have acted in view of the
circumstances that you find existed at the time. If you find that the defendant has proved that the
plaintiff was not using reasonable care to discover defects or
dangerous conditions or to avoid such defects as (he/she) ought to have known about or ought to
have been able to discover, then the defendant has proved the defense of contributory negligence and
you must consider this negligence of the plaintiff in relation to that of the defendant.
Authori - CivilJury Instructions §3.9-20
3.9-1 Status of Parties - General
In determining whether the defendant is liable to the plaintiff, it is necessary for you, the jury,
to decide what, if any, duty the defendant owed to the plaintiff. Under our law, this depends on what
the status of the plaintiff was in entering and remaining on the premises. If the plaintiff was a
trespasser, that may obligate the defendant to do or refrain from doing certain things about the
premises. If the plaintiff was a licensee (I will explain this term in a moment), then another set of
obligations is due from the defendant. If the plaintiff is an invitee, then a third set of legal duties is
owed by the defendant.
The determination of the plaintiff's status is a question of fact for you to determine. Your
decision about what the plaintiff's status was will then lead you to answer the question "what, if any,
duty did the defendant owe to the plaintiff?" according to the instructions that follow. Your first
question in this premises liability case, however, is what was the status of the plaintiff? The plaintiff
claims he had the status of an invitee; the defendant claims the plaintiff had the status of a licensee.
Since you must resolve this dispute, I will now explain the definition of licensee and invitee and in
each case what the law says about the duty of the defendant.
Authority - Civil Jury Instructions §3.9-1
Status of Parties - Licensee
A licensee is 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 express or implied
consent. A person who is a licensee has certain privileges that a trespasser does not have. A
possessor of land owes no duty to a licensee to keep the premises in a safe condition, because the
licensee must take the premises as (he/she) finds them and assumes the risk of any danger arising out
of an obvious condition. When, then, is a possessor of land liable for injury sustained by a licensee?
A possessor of land is subject to liability for injury to a licensee caused by a condition on the
land if, but only if:
1.the possessor knows or has reason to know of the condition and should realize that it involves an
unreasonable risk of harm to such licensee, and should expect that (he/she) will not discover or
realize the danger, and
2.the possessor fails to exercise reasonable care to make the condition safe, or to warn the licensee of
the condition and the risk involved, and
3.the licensee does not know or have reason to know of the condition and the risk involved. [Caveat:
see the concerns in the notes regarding the compatibility of the third prong with the abolition of the
assumption of the risk doctrine and the adoption of comparative negligence]
A possessor of land has reason to know of a dangerous condition if he had factual information that
would have led a person of reasonabie intelligence to conclude that the condition was dangerous.
The possessor of land must already know this factual information; he does not owe a duty to a
licensee to inspect the property to discover such factual information.
Authori - Civil Ju Instructions §3.9-3
Notice of Specific Defect
The notice to the defendant must be of the specific defect or unsafe condition that the
plaintiff claims caused the injury. It is not enough that the plaintiff prove the existence of certain
conditions that would likely produce such a defect, even if such conditions did in fact produce the
defect. Our law requires that the notice, whether actual or constructive, be of the very defect that
resulted in the plaintiff's injury.
Authority - Civil Jury Instructions §3.9-15
Credibility of Witnesses
The credibility of witnesses and the weight to be given to their testimony are matters for you
as jurors to determine. However, there are some principles that you should keep in mind. No fact is,
of course, to be determined merely by the number of witnesses who testify for or against it; it is the
quality and not the quantity of testimony that controls. In weighing the testimony of each witness
you should consider the witness's appearance on the stand and whether the witness has an interest of
whatever sort in the outcome of the trial. You should consider a witness's opportunity and ability to
observe facts correctly and to remember them truly and accurately, and you should test the evidence
each witness gives you by your own knowledge of human nature and the motives that influence and
control human actions. You may consider the reasonableness of what the witness says and the
consistency or inconsistency of (his/her) testimony. You may consider (his/her) testimony in relation
to facts that you find to have been otherwise proven. You may believe all of what a witness tells
you, some of what a witness tells you, or none of what a particular witness tells you. You need not
believe any particular number of witnesses and you may reject uncontradicted testimony if you find it
reasonable to do so. In short, you are to apply the same considerations and use the same sound
judgment and common sense that you use for questions of truth and veracity in your daily life.
Authority ~ Civil Jury Instructions §2.5-1
False Testimony
Ifyou believe that a witness testified falsely as to a part of (his/her) testimony, you may
choose to disbelieve other parts of (his/her) testimony, or the whole of it, but you are not required to
do so. You should bear in mind that inconsistencies and contradictions within a witness's testimony
or between that testimony and other evidence do not necessarily mean that the witness is lying.
Failures of memory may be the reason for some inconsistencies and contradictions; also, it is not
uncommon for two honest people to witness the same event, yet perceive or recall things differently.
Yet, if you find that a witness has testified falsely as to an issue, you should of course take that into
account in assessing the credibility of the remainder of (his/her) testimony.
Authority - Civil Jury Instructions §2.5-2
Sympathy/Prejudice
People may have biases for or prejudices against certain other people or certain perceptions
or stereotypes of other people. Please understand that your decision must not be reached on the basis
of sympathy or bias for or prejudice against any party. The parties come to court asking simply for a
cool, impartial determination of the disputed issues based on the facts and the law. That is what they
are entitled to and that is how you should approach the decision of this case.
Authority - Civil Jury Instructions §2.9-1
DEFENDANT,
CAROLE BROWN, EXECUTRIX
OF THE EplyTe OF EILEEN M. ARGENIO
py_/
Greg g. leger
Howard, , Sprague & FitzGerald
237 Buckingham Street P O Box 261798
Hartford CT 06126-1798
PH: 860-525-3101
Juris 28160
CERTIFICATION
[hereby certify that this pleading complies with the requirements of Practice Book § 4-7 and
a copy of the foregoing was mailed, U.S. Mail, postage prepaid, or electronically delivered pursuant
to Practice Book § 10-13 to all counsel and pro se parties of record who have given written consent
for electronic delivery, on November 27, 2023, as follows:
Gordon H. Goldsmith
Moore, O’Brien & Foti
891 Straits Tpke.
Middlebury, CT 06762
June Argenio
72 Palmer
~
)
Stamford? cT
Gr¢g S. Kiieger
Commissioner of the Superior Court
10
Preview
DOCKET NO. FST-CV-19-6044154-S SUPERIOR COURT JOHN LASKO J.D. OF NORWALK/STAMFORD VS. AT STAMFORD CAROLE BROWN, ET AL NOVEMBER 27, 2023 DEFENDANT’S PROPOSED JURY INSTRUCTIONS In accordance with the Court’s request, the defendant provides their proposed jury instructions. Burden of Proof - Claims The party making a claim has the burden of proof with respect to that claim. Thus, the plaintiff has the burden of proving each essential element of the cause of action upon which the plaintiff relies. 1 will review those elements with you in a moment. The defendants do not have to present evidence to disprove the plaintiff's claim. Authorit - Civil Ju Instructions 2.6-1 Burden of Proof - Damage: Our laws impose certain rules to govern the award of damages in any case where liability is proven. Just as the plaintiff has the burden of proving liability by a fair preponderance of the evidence, he has the burden of proving his entitlement to recover damages by a fair preponderance of the evidence. To that end, the plaintiff must prove both the nature and extent of each particular loss or injury for which he seeks to recover damages and that the loss or injury in question was proximately caused by the defendant's negligence. You may not guess or speculate as to the nature or extent of the plaintiff's losses or injuries. Your decision must be based on reasonable probabilities in light of the evidence presented at trial. Injuries and losses for which the plaintiff should be compensated include those he has suffered up to and including the present time and those he is reasonably likely to suffer in the future as a proximate result of the defendant's negligence. Negligence, as I previously instructed you, is a proximate cause of a loss or injury if it is a substantial factor in bringing that loss or injury about. Authority - C il Jui Instructions §3.4-1 Separation of Liability and Damages Ina general sense, a civil trial such as this has two issues: liability and damages. You will reach the issue of damages only if you find liability in favor of the plaintiff. If you find that liability is established, you will have occasion to apply my instructions concerning damages. If you find that liability has not been established, then you will not consider damages. The fact that | am instructing you on both liability and damages should not be taken by you as any indication as to how the court would decide liability. Rather, my charge includes both liability and damages because I must give you instructions on all the issues in the case. Authori - Civil Jury Instructions §2.7-1 Proximate Cause The plaintiff must prove that any (injury/harm) for which (he/she/it) seeks compensation from the defendant was caused by the defendant. The first issue for your consideration is, "Was the plaintiff (injured/harmed)?" If the answer is no, you will render a verdict for the defendant. If the answer is yes, you will proceed to the second issue, which is “Were such (injuries/harm) caused by the negligence of the defendant?" This is called "proximate cause." Negligence is a proximate cause of an injury if it was a substantial factor in bringing the (injury/harm) about. In other words, if the defendant's negligence contributed materially and not just in a trivial or inconsequential manner to the production of the (injury/harm), then (his/her/its) negligence was a substantial factor. If you find that the defendant's negligence was not a substantial factor in bringing about the (injury/harm) suffered by the plaintiff, you will render a verdict in favor of the defendant. However, if you find that the defendant's negligence was a substantial factor in causing (injury/harm) to the plaintiff, you will consider the (allocation of liability, assessment of damages, etc.). Authority - Civil Jury Instructions §3.1-1 Defendants’ Specification of Negligence The special defense filed by the defendant alleges a number of specific ways in which the plaintiff was negligent. I will read these specific allegations to you shortly. To establish that the plaintiff was negligent, it is not necessary for the defendant to prove all of these specific allegations. The proof of any one of these specific allegations is sufficient to prove negligence. The defendant has alleged that the plaintiff was negligent in that: 4. In that he failed to keep and maintain a reasonable and proper lookout; b. In that he failed to make reasonable and proper use of his senses and his faculties; C. In that he failed to take the necessary and proper precautions to observe the conditions then and there existing; d In that he failed to be watchful of his surroundings; e. In that he used a railing for a purpose not intended; f. In that he failed to use reasonable care for his own safety commensurate with the existing circumstances and conditions; and & In that he failed to properly inspect said premises as required by the management agreement. Authority - Civil Jury Instructions §3.5-2 Plaintiff's Duty of Care have previously instructed you that the defendant is under the obligation to exercise the care which a reasonably prudent person would use under the circumstances. The plaintiff is also under the same obligation. A plaintiff is negligent if the plaintiff does something which a reasonably prudent person would not have done under similar circumstances or fails to do that which a reasonably prudent person would have done under similar circumstances. Authority - Civil Jury Instructions §3.5-3 Reasonable Care In determining the care that a reasonably prudent person would use in the same circumstances, you should consider all of the circumstances which were known or should have been known to the defendant at the time of the conduct in question. Whether care is reasonable depends upon the dangers that a reasonable person would perceive in those circumstances. It is common sense that the more dangerous the circumstances, the greater the care that ought to be exercised. Authori - Civil Jury Instructions §3.6-4 Defendant Does Not Guarantee Safety It is not the law that the plaintiff is entitled to compensation merely because he is injured while on the premises controlled by another. The defendant is not required to guarantee the safety of all persons on the premises. Rather the defendant is only liable for the resulting injuries if the plaintiff meets the burden to prove the necessary elements of a defective premises claim as I now outline them for you. Authori - Civil Jw Instructions §3.9-18 Plaintiff's Duty to Use Faculties The defendant has raised a special defense and claims that the plaintiff did not make a proper use of (his/her) senses or faculties to avoid the injury, did not keep a proper lookout, and was not watchful. Under our law, the plaintiff is presumed to be in the exercise of due care; and if the defendant makes a claim to the contrary, the burden is on the defendant to prove it. The defense is that the plaintiff failed to use due care to look out for (his/her) own safety. That means that the plaintiff was not acting as a reasonably prudent or careful person would have acted in view of the circumstances that you find existed at the time. If you find that the defendant has proved that the plaintiff was not using reasonable care to discover defects or dangerous conditions or to avoid such defects as (he/she) ought to have known about or ought to have been able to discover, then the defendant has proved the defense of contributory negligence and you must consider this negligence of the plaintiff in relation to that of the defendant. Authori - CivilJury Instructions §3.9-20 3.9-1 Status of Parties - General In determining whether the defendant is liable to the plaintiff, it is necessary for you, the jury, to decide what, if any, duty the defendant owed to the plaintiff. Under our law, this depends on what the status of the plaintiff was in entering and remaining on the premises. If the plaintiff was a trespasser, that may obligate the defendant to do or refrain from doing certain things about the premises. If the plaintiff was a licensee (I will explain this term in a moment), then another set of obligations is due from the defendant. If the plaintiff is an invitee, then a third set of legal duties is owed by the defendant. The determination of the plaintiff's status is a question of fact for you to determine. Your decision about what the plaintiff's status was will then lead you to answer the question "what, if any, duty did the defendant owe to the plaintiff?" according to the instructions that follow. Your first question in this premises liability case, however, is what was the status of the plaintiff? The plaintiff claims he had the status of an invitee; the defendant claims the plaintiff had the status of a licensee. Since you must resolve this dispute, I will now explain the definition of licensee and invitee and in each case what the law says about the duty of the defendant. Authority - Civil Jury Instructions §3.9-1 Status of Parties - Licensee A licensee is 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 express or implied consent. A person who is a licensee has certain privileges that a trespasser does not have. A possessor of land owes no duty to a licensee to keep the premises in a safe condition, because the licensee must take the premises as (he/she) finds them and assumes the risk of any danger arising out of an obvious condition. When, then, is a possessor of land liable for injury sustained by a licensee? A possessor of land is subject to liability for injury to a licensee caused by a condition on the land if, but only if: 1.the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensee, and should expect that (he/she) will not discover or realize the danger, and 2.the possessor fails to exercise reasonable care to make the condition safe, or to warn the licensee of the condition and the risk involved, and 3.the licensee does not know or have reason to know of the condition and the risk involved. [Caveat: see the concerns in the notes regarding the compatibility of the third prong with the abolition of the assumption of the risk doctrine and the adoption of comparative negligence] A possessor of land has reason to know of a dangerous condition if he had factual information that would have led a person of reasonabie intelligence to conclude that the condition was dangerous. The possessor of land must already know this factual information; he does not owe a duty to a licensee to inspect the property to discover such factual information. Authori - Civil Ju Instructions §3.9-3 Notice of Specific Defect The notice to the defendant must be of the specific defect or unsafe condition that the plaintiff claims caused the injury. It is not enough that the plaintiff prove the existence of certain conditions that would likely produce such a defect, even if such conditions did in fact produce the defect. Our law requires that the notice, whether actual or constructive, be of the very defect that resulted in the plaintiff's injury. Authority - Civil Jury Instructions §3.9-15 Credibility of Witnesses The credibility of witnesses and the weight to be given to their testimony are matters for you as jurors to determine. However, there are some principles that you should keep in mind. No fact is, of course, to be determined merely by the number of witnesses who testify for or against it; it is the quality and not the quantity of testimony that controls. In weighing the testimony of each witness you should consider the witness's appearance on the stand and whether the witness has an interest of whatever sort in the outcome of the trial. You should consider a witness's opportunity and ability to observe facts correctly and to remember them truly and accurately, and you should test the evidence each witness gives you by your own knowledge of human nature and the motives that influence and control human actions. You may consider the reasonableness of what the witness says and the consistency or inconsistency of (his/her) testimony. You may consider (his/her) testimony in relation to facts that you find to have been otherwise proven. You may believe all of what a witness tells you, some of what a witness tells you, or none of what a particular witness tells you. You need not believe any particular number of witnesses and you may reject uncontradicted testimony if you find it reasonable to do so. In short, you are to apply the same considerations and use the same sound judgment and common sense that you use for questions of truth and veracity in your daily life. Authority ~ Civil Jury Instructions §2.5-1 False Testimony Ifyou believe that a witness testified falsely as to a part of (his/her) testimony, you may choose to disbelieve other parts of (his/her) testimony, or the whole of it, but you are not required to do so. You should bear in mind that inconsistencies and contradictions within a witness's testimony or between that testimony and other evidence do not necessarily mean that the witness is lying. Failures of memory may be the reason for some inconsistencies and contradictions; also, it is not uncommon for two honest people to witness the same event, yet perceive or recall things differently. Yet, if you find that a witness has testified falsely as to an issue, you should of course take that into account in assessing the credibility of the remainder of (his/her) testimony. Authority - Civil Jury Instructions §2.5-2 Sympathy/Prejudice People may have biases for or prejudices against certain other people or certain perceptions or stereotypes of other people. Please understand that your decision must not be reached on the basis of sympathy or bias for or prejudice against any party. The parties come to court asking simply for a cool, impartial determination of the disputed issues based on the facts and the law. That is what they are entitled to and that is how you should approach the decision of this case. Authority - Civil Jury Instructions §2.9-1 DEFENDANT, CAROLE BROWN, EXECUTRIX OF THE EplyTe OF EILEEN M. ARGENIO py_/ Greg g. leger Howard, , Sprague & FitzGerald 237 Buckingham Street P O Box 261798 Hartford CT 06126-1798 PH: 860-525-3101 Juris 28160 CERTIFICATION [hereby certify that this pleading complies with the requirements of Practice Book § 4-7 and a copy of the foregoing was mailed, U.S. Mail, postage prepaid, or electronically delivered pursuant to Practice Book § 10-13 to all counsel and pro se parties of record who have given written consent for electronic delivery, on November 27, 2023, as follows: Gordon H. Goldsmith Moore, O’Brien & Foti 891 Straits Tpke. Middlebury, CT 06762 June Argenio 72 Palmer ~ ) Stamford? cT Gr¢g S. Kiieger Commissioner of the Superior Court 10