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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 concludes that, even if the court’s instruction was incorrect,

the error did not harm the plaintiff. The majority therefore 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 bicyclists, 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 reasonable person approaching the entrance to the defendant’s

campus from Sherman Avenue to believe that the premises 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 plaintiff and Lebov turned right at this intersection to continue 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 guardhouse is flanked on both sides by two yellow painted

speed bumps. A sign posted on the front of the guardhouse states that ‘‘all vehicles must stop and be registered.’’ 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 guardhouse 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 pedestrians 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 supports 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 guardhouse 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 service 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 condition and that he had been injured as a result of the

defendant’s negligence in allowing this dangerous condition 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 allegation 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 approximately 9.8 miles per hour at the time the accident

occurred.

Following the conclusion of the defendant’s casein-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 negligence.

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 categories 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 suspicious, 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 explanation, proceeded to summarize the law concerning

implied invitations. Citing the second edition of American Jurisprudence, the court stated: ‘‘An invitation may

be implied from dedication, customary use, or enticement, allurement, or inducement to enter [or] manifested 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 defendant’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 definition 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 invitation 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 directing a verdict in favor of the defendant. More specifically,

the plaintiff contends that, without a licensee instruction, 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), quoting 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 invitation or by an express grant of permission. I disagree,

however, that there was insufficient evidence to support 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 circumstances.’’ Id. For example, ‘‘[i]f a railway company prepares a paved or boarded path between the two platforms 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 provided between the two platforms, a passenger may reasonably 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 purposes, residents in that locality and others knowing

of the custom are justified in regarding a particular

possessor as conversant with it and, therefore, in construing 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 campus, supports the conclusion that the plaintiff’s presence 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 circumstances 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 possessor knows of the other’s intention to enter and has

reason to believe that his objection is likely to be effective 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 circumstances are, it appears to rely heavily, if not exclusively,

on the fact that the plaintiff did not stop at the guardhouse 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 presence of the guardhouse as a manifestation of the defendant’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 coming into the campus by other means—for example, by

foot or on bicycle—must also check in at the guardhouse 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 circumstances, a reasonable person in the plaintiff’s position

may well have concluded that the only apparent purpose 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 proceed along the route traveled by the plaintiff to the top

of the campus.11

I also respectfully disagree with the majority’s speculative 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 circumstances 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, however, ‘‘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 defendant . . . .’’ I agree.

The record reveals that there was no evidence presented at trial to indicate that the defendant had intentionally 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 necessarily harmed the plaintiff because it deprived him of

a fair opportunity to have the jury carry out its constitutional 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 harmless. 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 presented that the defendant had actual knowledge of the

defective condition of the speed bump, the around-theclock 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 Cavaliere 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 contributorily 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 plaintiff’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 standard of review regarding challenges to a trial court’s

evidentiary rulings is that these rulings will be overturned 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 settled 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.’’ (Internal 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 Evidence, ‘‘[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 competent 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, Melendez’ 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 estimation 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-a`-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 plaintiff’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 Avenue 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 previously 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 Condominium 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 quotation marks omitted.]).