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Villalobos v. Target Corp.
WENDY C. VILLALOBOS v.
TARGET CORPORATION
(AC 47392)
Cradle, C. J., and Clark and Seeley, Js.*
Syllabus
The plaintiff appealed from the judgment of the trial court, rendered after a jury trial, for the defendant in her premises liability action. The plaintiff had sustained injuries when she was struck by a vehicle while traversing a crosswalk intersecting a roadway in a parking lot in front of the defendant’s store. She alleged, inter alia, that the defendant’s negligence in failing to divide the lanes of the roadway with a center yellow line was a substantial cause of the accident. On appeal, the plaintiff claimed that the court had improperly declined to charge the jury on the nondelegable duty doctrine. Held:
The trial court improperly denied the plaintiff’s request to charge the jury on the nondelegable duty doctrine, as it was undisputed that the plaintiff’s proposed instruction was an accurate statement of the law, that the defendant had hired independent contractors to design, construct and maintain the subject roadway, that the defendant controlled the premises at all relevant times, and that it was possible that the jury could have found that the contractors, rather than the defendant, were responsible for any defects in the roadway, and the evidence provided a sufficient basis from which the jury could have found that the absence of a yellow line in the roadway constituted a defect that created an unreasonable risk of harm to pedestrians and was a substantial factor in causing the plaintiff’s injuries.
Argued March 23—officially released October 20, 2026
Procedural History
Action to recover damages for the defendant’s alleged
negligence, and for other relief, brought to the Superior Court in the judicial district of New Britain, where
Pamela Duval et al. were added as apportionment defendants; thereafter, the claims against the apportionment
defendant NB-BTMC, LLC, were withdrawn, and the
plaintiff entered into a settlement agreement with the
apportionment defendant Pamela Duval; subsequently,
the case was tried to the jury before Knox, J.; verdict and judgment for the defendant, from which the plaintiff
appealed to this court. Reversed; new trial.
*
The listing of judges reflects their seniority status on this court as of the date of oral argument.
Villalobos v. Target Corp.
Jennifer B. Levine, with whom was Harvey L. Levine,
for the appellant (plaintiff).
Brian M. Paice, for the appellee (defendant).
Opinion
CLARK, J. In this premises liability action, the plaintiff, Wendy C. Villalobos, appeals from the judgment
of the trial court, rendered after a jury trial, in favor of the defendant, Target Corporation. The plaintiff claims
that the trial court improperly declined to charge the
jury on the nondelegable duty doctrine. We agree and
reverse the judgment.1
The following facts and procedural history are relevant
to our resolution of this appeal. On October 12, 2016,
the plaintiff was struck by a vehicle operated by Pamela
Duval in front of the Target store in New Britain. Duval,
who is nearsighted, was not wearing her eyeglasses at
the time of the accident. Despite her nearsightedness,
there was no restriction on Duval’s operator’s license
requiring her to wear corrective lenses, and, prior to the
accident, Duval had worn her eyeglasses only sometimes
to drive. Duval did not see the plaintiff until the moment
that she hit her.
There is a roadway in front of the Target store that runs
in a northerly and southerly direction. This roadway,
which connects to Hartford Road, is the sole access road
in and out of the Target complex. A pedestrian crosswalk
1
The plaintiff also claims that the trial court (1) improperly limited the testimony of her expert witness because the plaintiff failed to adequately disclose him as an accident reconstructionist and human factors expert pursuant to Practice Book § 13-4, and (2) abused its discretion in refusing to sanction the defendant for various discovery violations. Because we agree with the plaintiff’s claim that the trial court erred in refusing to instruct the jury on the nondelegable duty doctrine, we need not address these other claims, which, if successful, would entitle the plaintiff to the same relief she seeks under her nondelegable duty claim and are unlikely to arise again at a new trial. Because we reverse the judgment, we also need not address the plaintiff’s claim that the trial court erred in the amount of expert witness fees awarded to the defendant.
Villalobos v. Target Corp.
leading to the parking lot traverses the roadway in front
of the store’s main entrance.
On the day of the accident, the plaintiff exited the
store and was pushing her shopping cart in the crosswalk when Duval executed a wide right-hand turn from
one of the parking aisles onto the roadway, striking the
plaintiff in the northbound traffic lane. The force of the
impact threw the plaintiff onto the hood of Duval’s car
and then to the ground, causing the plaintiff to sustain
injuries. Surveillance video of the incident shows that
Duval’s vehicle was considerably over the center of the
roadway at the point of impact. Due to the position and
elevation of the sun at the time of the accident, the Target building cast a wide shadow along the front of the
store, which extended into the northbound travel lane
where the plaintiff was walking when she was struck.
Surveillance video of the accident shows that Duval’s
windshield was in full sun until the point of impact.
It further shows that Duval was not the only driver to
execute a wide turn from a parking aisle onto the roadway
at the time of the accident. Most of the vehicles leaving
the parking lot did the same.
The plaintiff commenced the underlying action on
October 9, 2018, claiming that the defendant’s negligent
design of the roadway and crosswalk was a substantial
cause of the accident.2 The operative complaint specifically alleged, inter alia, that the defendant had negligently failed to place stop signs in the roadway on either
side of the crosswalk and to divide the northerly and
southerly lanes of the roadway with a yellow line to keep
drivers in their respective lanes. The plaintiff alleged
that such a line would have prevented the accident in
question by “command[ing] [Duval] . . . to not make a
wide turn with her vehicle and to keep the travel path
of her vehicle properly within the southerly lane of the
. . . roadway . . . .”
2
The plaintiff brought a separate action against Duval, which was consolidated with the present action. The Duval action was settled prior to trial.
Villalobos v. Target Corp.
The defendant denied these allegations and asserted a
special defense of contributory negligence, claiming that
the plaintiff’s injuries were caused not by the defendant’s negligence but, rather, by the plaintiff’s failure “to make proper use of her senses and faculties” and to “keep a
proper lookout for vehicles” when using the crosswalk.
The defendant also filed an apportionment complaint
against Duval, alleging that the plaintiff’s injuries were
caused, in whole or in part, by Duval’s negligent operation of her motor vehicle.
A trial commenced in January 2024. During opening
arguments, the defendant’s counsel argued that “Target
did not design the lot or the layout. Target hired [VHB]
Design Professionals to do that. They’re the ones who got
all the city and state approvals. . . . Target relied on its expert design engineers to conform to the local government requirements, and it met the standard of care at
the time. Now, with respect to this yellow line, you are
going to see that [VHB] did call for a yellow line [but] did not call for stop signs, just the yellow line, and there may have been a yellow line at some point in time. . . . We do
know that this was repaved at some point . . . and we’ll
hear that Target hired a vendor to do that and that they
hired somebody to oversee it and that they are supposed
to repaint it the way it was originally designed, and that
may not have happened and that is wrong. That should
not have happened. If there was a yellow line and it was
repaved, that yellow line should have been put back.”
On the second day of evidence, the defendant’s attorney
stipulated in open court that the as built plans for the
Target store, certified by the State Traffic Commission
(STC), called for a center yellow line in the roadway and
“that, in 2000, when the store was built, a single yellow
line was present . . . .”3 The defendant further stipulated 3
The STC approval, which was entered into evidence, stated in relevant part: “The applicant is hereby ordered to comply with the conditions and requirements as set forth in the attached report and [site] plans. Failure to comply with all conditions and requirements will constitute sufficient basis for revocation of the Certificate. NO PERSON SHALL OPERATE THE DEVELOPMENT OR ANY PORTION THEREOF UNTIL
Villalobos v. Target Corp.
“that, in 2016 when the accident occurred, the yellow
line was not present.” Prior to trial, in affidavits, court filings, depositions and other forms of discovery, the
defendant and its representatives repeatedly had represented to the plaintiff that the STC approved site plan
did not call for a center yellow line and that no such line ever existed in the roadway.
Thereafter, Rodd Schmitt, a Target representative,
testified that, sometime in the past, although he did
not know when, Target hired a vendor to repave the
parking lot and that the vendor failed to repaint the
yellow line. He further testified that the store’s property maintenance technician “would [have] assume[d]
that the vendor was doing the job correctly . . . .” Aaron
Hemquist, another Target representative, testified that
Target is not responsible for the design of its parking
lots but, rather, hires licensed civil engineers to design
them. Hemquist stated, “[s]o, Target . . . does not sign,
you know, we don’t have any—we don’t sign off on plans.
We have design professionals that will design and sign
the plans.”
The plaintiff’s expert witness, Jeffery Cissell, an investigative engineer certified by the National Academy of
Forensic Engineers and a former highway supervisor and
town engineer for the town of Clinton, testified that there were numerous defects in the design of the roadway, chief
among them the failure to install stop signs on either side of the crosswalk and the absence of a center yellow line.
Such safety measures were needed, he stated, because
the roadway is a high “conflict” area. Cissell testified
that the conflicts to which he was referring—“[c]ar to
car, car to pedestrian [conflicts]”—are attributable, in
part, to the fact that all vehicles entering and leaving the facility—approximately 7000 per day—must traverse
the roadway in front of the store, while all visitors to
the store are required to cross the roadway to enter the
SUCH TIME AS THE APPLICANT HAS COMPLIED WITH THE ABOVE
UNLESS PERMISSION HAS BEEN REQUESTED AND RECEIVED
FROM THE STATE TRAFFIC COMMISSION TO OPERATE PRIOR
TO COMPLETION OF THE CONDITIONS AND REQUIREMENTS.”
Villalobos v. Target Corp.
store. Cissell further testified that the hazards created by this design are compounded by the layout of the parking
aisles, especially the aisle where Duval was parked prior
to the accident. Cissell testified that the close proximity of that aisle to the crosswalk gives drivers very little
time to detect and react to pedestrians in the crosswalk
when they turn onto the roadway. These risks are further compounded, Cissell testified, by the lack of speed
controls and pedestrian warning signs, and because,
at certain times of the day, the Target building casts
a wide shadow over the northbound traffic lane, which
can further affect the perception, detection and reaction
time of motorists, such as Duval, who are driving in the
southbound lane into the sun.
During cross-examination, the defendant’s counsel
asked Cissell whether he was aware that VHB “[was]
the one . . . responsible for the design of this parking
lot.” When Cissell responded that he was aware, the
defendant’s counsel stated, “they were the engineering
firm hired by Target to design this lot, correct?” When
Cissell responded that he did not know who hired VHB to
design the parking lot, the defendant’s counsel stated,
“[i]n doing an investigation as an expert in this case, as
a parking lot design expert that you hold yourself out to,
you did not even look into how VHB is involved in this
case, did you?” Counsel further stated, “you assumed
that Target designed this lot, didn’t you? . . . [Y]ou never did the background homework that an expert should do
before you wrote your report, isn’t that true? . . . Did
you do the background work that would have told you
who all the players were in this case before you wrote
your report?”
At the conclusion of the trial, the plaintiff requested
that the trial court charge the jury on the nondelegable
duty doctrine. The court declined to do so, stating that
the doctrine was inapplicable to this case. The court also
denied the plaintiff’s request to submit interrogatories
to the jury to elicit the specific grounds for the jury’s
Villalobos v. Target Corp.
verdict.4 The jury subsequently returned a verdict in
favor of the defendant.
On appeal, the plaintiff claims that the trial court
improperly denied her request to charge the jury on the
nondelegable duty doctrine. The plaintiff argues that
the defendant presented evidence and argument that it
hired independent contractors to design and construct
the subject roadway, thereby implying to the jury that
any defects therein were the fault of those independent
contractors, not the defendant. In light of this evidence,
the plaintiff argues, the jury should have been instructed
that, under the nondelegable duty doctrine, the defendant was liable for the negligence of the independent
contractors who worked on the roadway. The plaintiff
further argues that, under Garcia v. Cohen, 204 Conn.
App. 25, 253 A.3d 46 (2021), appeal dismissed, 344 Conn.
84, 277 A.3d 788 (2022), the trial court’s refusal to give
the requested instruction, “along with its instruction
that the defendant could be absolved of liability if some
other cause so powerfully caused the plaintiff’s injury
that it trivialized the defendant’s negligence, constitutes harmful error . . . [because] the jury could have concluded that the [contractors], rather than the [defendant], acted
negligently, and for that reason found that the defendant
had not acted negligently or had acted less negligently
than the plaintiff.”
“In determining whether the trial court improperly
refused a request to charge, [w]e . . . review the evidence presented at trial in the light most favorable to supporting the . . . proposed charge. . . . A request to charge
which is relevant to the issues of [a] case and which is
an accurate statement of the law must be given. . . . If,
however, the evidence would not reasonably support a
finding of the particular issue, the trial court has a duty not to submit it to the jury. . . . Thus, a trial court should instruct the jury in accordance with a party’s request to
4
The proposed interrogatories addressed the plaintiff’s allegations of negligence against the defendant and the special defense asserted by the defendant, as well as the defendant’s apportionment complaint against Duval.
Villalobos v. Target Corp.
charge [only] if the proposed instructions are reasonably
supported by the evidence. . . . Whether the evidence
presented by a party reasonably supports a particular
request to charge is a question of law over which our
review is plenary. . . . Similarly, whether there is a legal basis for the requested charge is a question of law also
entitled to plenary review.” (Citations omitted; internal
quotation marks omitted.) Garcia v. Cohen, supra, 204
Conn. App. 31–32.
“Nondelegable duties generally are imposed, most
often by statute, contract or common law, in recognition of the policy judgment that [some] obligations are
of such importance that [certain parties] should not be
able to escape liability merely by hiring others to perform them.” (Internal quotation marks omitted.) Machado
v. Hartford, 292 Conn. 364, 371, 972 A.2d 724 (2009).
It is well established that “[t]he owner or occupier of
premises owes invitees a nondelegable duty to exercise
ordinary care for the safety of such persons. . . . [T]he
nondelegable duty doctrine means that [although the
owner or occupier] may contract out the performance of
[the] nondelegable duty, [it] may not contract out [its]
ultimate legal responsibility. . . . [Thus, we have held]
that the owner or occupier of a premises owes a nondelegable duty to keep the premises safe by protecting third
persons from foreseeable . . . injuries. Should the owner
or occupier of the premises hire a contractor to maintain
the property, the owner or occupier is vicariously liable
for the consequences arising from that contractor’s tortious conduct. . . . In other words, the nondelegable duty
doctrine creates a form of vicarious liability pursuant to
which a property owner may be liable to an invitee for
the negligence of its independent contractors or subcontractors in their performance of the [property owner’s]
nondelegable duty, regardless of whether the property
owner actually is at fault or the degree of fault.” (Citations omitted; emphasis omitted; internal quotation
marks omitted.) Sola v. Wal-Mart Stores, Inc., 152 Conn.
Villalobos v. Target Corp.
App. 732, 743, 100 A.3d 864, cert. denied, 314 Conn.
941, 103 A.3d 165 (2014).5
To prevail on a premises liability claim, a plaintiff
must prove that the defendant had possession and control of the premises in question. See, e.g., LaFlamme
v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002)
(nondelegable duty doctrine applies only if plaintiff
establishes that defendant maintained possession and
control of property); Millette v. Connecticut Post Ltd.
Partnership, 143 Conn. App. 62, 75, 70 A.3d 126 (2013)
(same). “Our case law recognizing that a property owner
may be held vicariously liable for the negligence of an
independent contractor performing maintenance or
repair work on the property is in accord with § 422 of
the Restatement (Second) of Torts, which sets forth
the following rule: ‘A possessor of land who entrusts
the repair of a building or other structure thereon to an
independent contractor is subject to the same liability
to persons within or outside the land who are injured
by the contractor’s negligent failure to put or maintain
the building or structure in reasonably safe condition as
though he had retained the making of the repairs in his
own hands.’ . . . 2 Restatement (Second), [Torts] § 422,
p. 405 [(1965)].” (Emphasis omitted.) Sola v. Wal-Mart
Stores, Inc., supra, 152 Conn. App. 744. Moreover, so
long as the owner maintains possession and control of
the property, it is immaterial whether the repair work
complained about was completed long before the injury
was sustained. See 2 Restatement (Second), supra, § 422,
illustration (3), p. 406 (“A, the owner of the land, employs an independent contractor to construct a building on the
land. The building is completed, and A resumes possession of the premises. Thereafter an awning negligently
5
As with other forms of vicarious liability, when the nondelegable duty doctrine applies, the property owner may bring an indemnification action against the independent contractor whose tortious conduct gave rise to the property owner’s liability. See, e.g., Smith v. Greenwich, 278 Conn. 428, 462, 899 A.2d 563 (2006) (“[i]t is widely recognized that, when one party is vicariously liable for another party’s conduct, the appropriate remedy for an innocent party who has been held vicariously liable is a claim for indemnity”).
Villalobos v. Target Corp.
installed by the contractor above a window falls into the
public street, injuring B, a pedestrian. A is subject to
liability to B.”).
In Garcia v. Cohen, supra, 204 Conn. App. 25, this
court determined that the trial court improperly refused
to charge the jury on the nondelegable duty doctrine.
Id., 27–28. In that case, the jury found the owners of an
apartment building not liable for injuries their tenant
sustained when she slipped and fell on an exterior staircase, allegedly due to an accumulation of sand and salt on
the stairs. Id. At trial, one of the owners “testified that he hired individuals to assist him in removing snow from
the . . . steps and in spreading salt and sand on them.”
Id., 33. This court held that the owner’s testimony, “[o]n
its face . . . implicate[d] the nondelegable duty doctrine
because [the owner] testified that there were individuals performing maintenance work on the . . . exterior
staircase. Thus, he raised the issue, by implication, of
whether he or the others may have been responsible for
the claimed defect. It is well fixed in our decisional law . . . that [the owner or occupier of property] cannot shift legal responsibility to others when someone is injured due to
the condition of property . . . .” Id., 33–34.
In reaching that determination, this court rejected the
owners’ argument that the nondelegable duty doctrine
was inapplicable because the owners never attempted
to shift responsibility for the tenant’s injuries to the
contractors who removed the snow from the staircase.
Id., 35. This court stated that it was “immaterial to
the [tenant’s] claim that the [owners] never explicitly
attempted to shift blame to their contractors or employees. The proposed nondelegable duty charge was relevant
to the issues in this case, was an accurate statement of
the law, and was reasonably supported by the evidence
adduced at trial.” Id.
Finally, this court concluded that the trial court’s error
was harmful because, “[on] the basis of [the owner’s]
testimony that he hired workers for snow removal and
sanding, it is possible that the jury could have concluded
Villalobos v. Target Corp.
that the snow removal team, rather than the [owners],
acted negligently, and for that reason found that the
[owners] had not acted negligently or had acted less negligently than the [tenant]. . . . Although the trial court
instructed the jury on the duties that the [owners] owed
to the [tenant] as a tenant-invitee, the invitee instruction itself (the [owner] has a duty to maintain and a duty to
warn) is distinct from the nondelegable duty instruction
(the [owner] cannot avoid liability by hiring others to
maintain the premises). If the jury found that the snow
removal crew had been negligent, that negligence under
the nondelegable duty doctrine would have resulted in
some allocation of liability to the [owners]. The jury’s
estimation and allocation of negligence are intertwined
with the nondelegable duty instruction, and the jury had
no untainted route to the verdict.” (Emphasis in original;
internal quotation marks omitted.) Id., 36–37.
In the present case, the defendant does not dispute
that the plaintiff’s proposed nondelegable duty jury
instruction was an accurate statement of the law, that
the defendant hired independent contractors to design,
construct and maintain the subject roadway and that the
defendant controlled the premises at all relevant times.
Nor does the defendant dispute that it was possible the
jury could have concluded that the contractors, rather
than the defendant, were responsible for any defects in
the roadway. Instead, the defendant argues that the trial
court properly declined to give the requested instruction
because there was no evidence that the absence of a center
yellow line constituted a defect in the roadway, much
less that it caused the plaintiff’s injuries. The defendant contends, “[c]learly, the lack of center line constituted,
at worst, an imperfection; it certainly does not rise to the level of unreasonably dangerous.” (Emphasis omitted.)
We disagree with the defendant’s contention that there
was no evidence that the lack of a yellow line constituted
a defect or that such defect caused the plaintiff’s injuries. The plaintiff’s liability expert, Cissell, testified that the omission of a center yellow line constituted a defect in the
Villalobos v. Target Corp.
roadway that increased the risk of harm to pedestrians
in the crosswalk. Cissell also testified that the increased risk was attributable, in part, to the fact that all vehicles arriving at and leaving the Target complex were required
to use the roadway in front of the store and all visitors to the store were required to cross the roadway to enter the
store. Cissell testified that a center yellow line would have forced drivers executing ninety degree turns from the
parking aisles onto the roadway to maintain their proper
lanes in a high conflict area with reduced driver visibility at certain times of the day. Cissell further testified that, if Duval had kept to her side of the road, she would have
driven right past the plaintiff rather than strike her
in the opposing traffic lane. This testimony provided a
sufficient basis from which the jury reasonably could
have found that the absence of a yellow line was both a
defect in the roadway—one that created an unreasonable
risk of harm to pedestrians—and a substantial factor in
causing the plaintiff’s injuries.6
The defendant next argues that the trial court properly
declined to give the requested instruction because the
6
In arguing to the contrary, the defendant relies on the testimony of its own liability expert, Charles Harlow, that yellow lines are not allowed in crosswalks and that the presence of such a line in the subject crosswalk would have rendered it unreasonably dangerous. The defendant’s argument misapprehends the nature of the plaintiff’s claim. The plaintiff does not claim that the defendant was negligent for failing to place a center yellow line through the crosswalk. The plaintiff claims that the defendant was negligent by failing to place a center yellow line on the roadway on either side of the crosswalk, as required by the STC approved site plan. It is the plaintiff’s contention that, if that line had been in place on the day of the accident, it would have guided Duval into the proper lane when she turned onto the roadway from the parking lot, thereby preventing the accident altogether.
The defendant also argues that the lack of a center line “did not render the premises unreasonably dangerous given that there were no other incidents involving pedestrians being struck by vehicles in the two years preceding the accident involving the plaintiff.” There are several problems with this argument, not the least of which is the lack of evidence to support it. The defendant relies, instead, on its May 21, 2019 response to an interrogatory asking whether, in the twenty-four months preceding the plaintiff’s accident, the defendant received any complaints about the defective conditions alleged in the complaint.
Villalobos v. Target Corp.
owner of land owes a nondelegable duty to invitees to
keep the premises safe from foreseeable harm, and “[i]t
was not foreseeable that the plaintiff would be struck
by a vehicle, while walking in a crosswalk, due to the
absence of a center yellow line.” (Emphasis omitted.)
The defendant further argues that “this accident would
have unfolded in exactly the same way regardless of
whether . . . there was a center yellow line [meaning]
that the plaintiff’s proposed nondelegable duty charge
was neither relevant to the issues [presented], nor was it
reasonably supported by the evidence adduced at trial.”
It is axiomatic that whether injuries were foreseeable
“ordinarily gives rise to a question of fact for the finder of fact, and this issue may be decided by the court only if no reasonable fact finder could conclude that the injury
was within the foreseeable scope of the risk such that the
defendant should have recognized the risk and taken precautions to prevent it. . . . In other words, foreseeability becomes a conclusion of law only when the mind of a fair
and reasonable [person] could reach only one conclusion;
if there is room for reasonable disagreement the question
is one to be determined by the trier as a matter of fact.”
(Citation omitted; internal quotation marks omitted.)
Ruiz v. Victory Properties, LLC, 315 Conn. 320, 330, 107
Even if this court properly could consider the defendant’s response to the plaintiff’s interrogatory, the defendant cites no authority, and we are aware of none, for the proposition that the absence of prior, similar accidents is dispositive of whether a condition is unreasonably dangerous or compels a finding that the condition is not dangerous. In a premises liability action, evidence of prior, similar accidents is ordinarily relied on to prove that a defendant had notice of a defective condition, not that the condition was unreasonably dangerous. See, e.g., DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 117, 49 A.3d 951 (2012) (“business owners do not breach their duty to invitees by failing to remedy a danger unless they had actual or constructive notice of that danger”); Claveloux v. Downtown Racquet Club Associates, 246 Conn. 626, 630–31, 717 A.2d 1205 (1998) (evidence of substantially similar accident is admissible for purposes of proving notice of danger or defect). In the present case, notice was not an issue at trial because the defendant stipulated that the STC approved site plan called for a center yellow line and that this line was mistakenly omitted by a contractor when the roadway was repaved.
Villalobos v. Target Corp.
A.3d 381 (2015). The test for foreseeability is whether an
“ordinary [person] in the defendant’s position, knowing
what he knew or should have known, [would] anticipate
that harm of the general nature of that suffered was
likely to result.” (Internal quotation marks omitted.)
Allen v. Cox, 285 Conn. 603, 610, 942 A.2d 296 (2008).
We are not persuaded that no reasonable person could
conclude that the plaintiff’s injuries were within the
foreseeable scope of the risk created by the defendant’s
failure to replace the center yellow line after the roadway was repaved. Indeed, the sole purpose of such a line is
to prevent the very type of harm that occurred in this
case (a vehicle crossing into the opposing traffic lane and colliding with another vehicle, a cyclist or a pedestrian)
from happening. It is well established that “[as] long as
harm of the general nature as that which occurred is
foreseeable there is a basis for liability even though the
manner in which the accident happens is unusual, bizarre
or unforeseeable.” (Internal quotation marks omitted.)
Ruiz v. Victory Properties, LLC, supra, 315 Conn. 335;
see also id. (“focus of foreseeability inquiry should be
on the general nature of the harm and not the specific
manner in which the injury occurred or the conduct of a
third party” (internal quotation marks omitted)).
Nor can we conclude that the requested instruction was
unnecessary because this accident would have unfolded
in the same way regardless of the presence of a yellow
line. It is axiomatic that “[t]he issue of causation in a
negligence action is a question of fact for the trier . . . . [See] Stewart v. Federated Dept. Stores, Inc., 234 Conn.
597, 611, 662 A.2d 753 (1995) (causation is essentially
a factual issue); Fox v. Mason, 189 Conn. 484, 489, 456
A.2d 1196 (1983) ([c]onclusions of proximate cause are to
be drawn by the jury and not by the court) . . . .” (Citation omitted; internal quotation marks omitted.) Burton v.
Stamford, 115 Conn. App. 47, 87, 971 A.2d 739, cert.
denied, 293 Conn. 912, 978 A.2d 1108 (2009). To prove
causation, the plaintiff must establish “that it is more
likely than not that the cause on which the plaintiff relies
Villalobos v. Target Corp.
was in fact a proximate cause of the accident.” (Emphasis
omitted; internal quotation marks omitted.) Rawls v.
Progressive Northern Ins. Co., 310 Conn. 768, 777, 83
A.3d 576 (2014).
Causation is proven by probability, not certainty,
and juries routinely must decide what a person probably would have done under the circumstances. If a jury
could find that a defendant was negligent in failing to
replace a stop sign at a busy intersection, it reasonably
could assume, in the absence of evidence to the contrary,
that a driver approaching the intersection would have
stopped at the stop sign. See, e.g., Sic v. Nunan, 307
Conn. 399, 408, 54 A.3d 553 (2012) (“our case law is
clear that a driver is entitled to assume that other users
of the highway will obey the law, including lawful traffic
regulations, and observe reasonable care, until he knows
or in the exercise of reasonable care should have known
that the assumption has become unwarranted” (internal
quotation marks omitted)). The assumption that drivers
obey the rules of the road is well established in our case
law. See, e.g., Zegarski v. Horton, 150 Conn. 212, 219,
187 A.2d 750 (1963) (“[o]ne of the factors to be considered by the jury was the rule that [the driver] had the right
to assume, until he knew or should have known to the
contrary, that [the driver behind him] was not following
too closely in violation of the [law]”); Gross v. Boston,
Worcester & New York Street Railway Co., 117 Conn.
589, 598, 169 A. 613 (1933) (“it was incumbent on the
trial court, even without request, to give instructions
upon [the rule]”). In the present case, therefore, in the
absence of evidence to the contrary, a jury reasonably
could conclude that Duval would have stayed within her
lane if a yellow line had been there to guide her when she
turned onto the roadway from the parking aisle.
The defendant finally argues that, even if the trial
court erred in refusing to give the requested nondelegable duty charge, that error was harmless in light of
Duval’s testimony that she was not wearing her glasses
at the time of the accident and did not see the plaintiff
Villalobos v. Target Corp.
until the moment that she hit her in the crosswalk. The
defendant argues that “there is no situation where the
presence of the center yellow line would have changed
the outcome, either of the accident or of the trial,” and
that, “based on the totality of evidence presented at trial, no reasonable jury could possibly find that the accident
was caused by anything other than Duval.” Again, we
are not persuaded.
“[N]ot every improper jury instruction requires a new
trial because not every improper instruction is harmful.
[W]e have often stated that before a party is entitled to
a new trial . . . he or she has the burden of demonstrating that the error was harmful. . . . An instructional
impropriety is harmful if it is likely that it affected the verdict. . . . In determining whether an instructional
impropriety was harmless, we 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 indications by the jury itself that it was misled.” (Citation
omitted; internal quotation marks omitted.) Garcia v.
Cohen, supra, 204 Conn. App. 36.
Contrary to the defendant’s contentions, although
Duval was not wearing her eyeglasses at the time of
the accident, the jury reasonably could have found, on
the basis of the store surveillance video and Cissell’s
testimony, that Duval’s nearsightedness had nothing
to do with the accident and that it was the layout of the
parking aisles, the glare of the sun and the shadows cast
by the Target building that caused Duval not to see the
plaintiff until it was too late. The plaintiff’s principal
argument at trial was that, if the center yellow line had
been in place, it likely would have prevented Duval from
making a wide turn into the opposing traffic lane, ensuring that Duval drove past the plaintiff instead of hitting
her. If the jury agreed that the absence of a center yellow
Villalobos v. Target Corp.
line rendered the roadway defective and dangerous and
contributed to the accident in the manner alleged, but
concluded that the contractor who repaved the roadway
was negligent, as the defendant’s counsel argued at trial,7 that negligence under the nondelegable duty doctrine
would have resulted in some allocation of liability to the
defendant, even if the jury had found that Duval bore
the lion’s share of the blame for the accident. Thus, as
in Garcia, any estimation and allocation of negligence
in the present case implicated the nondelegable duty
doctrine such that, without the requested instruction,
the jury had no untainted route to the verdict.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
7
Although the defendant’s counsel did not use the word “negligent” when describing the contractor’s actions, that was essentially what she argued in her opening statement: “We do know that this [roadway] was repaved at some point . . . and we’ll hear that Target hired a vendor to do that and that they hired somebody to oversee it and that they are supposed to repaint it the way it was originally designed, and that may not have happened and that is wrong. That should not have happened. If there was a yellow line and it was repaved, that yellow line should have been put back.”