The Connecticut Appellate Court’s recent decision in Hope v. Willimantic Partners, LLC addresses several recurring issues in premises liability litigation. The case arose from a serious fall in a commercial parking lot and resulted in a substantial jury verdict for the plaintiffs—one that the Appellate Court affirmed in full. 

For plaintiff-side trial attorneys, Hope is not about a new rule of law. Instead, it offers a practical example of how familiar premises liability principles are applied to a developed trial record.

The opinion analyzes:

• evidentiary sufficiency for proof of a specific defect,
• evidentiary sufficiency for proof of constructive notice,
• applicability of the Dead Man’s statute in premises liability case involving multiple plaintiffs,
• what happens when a jury returns an verdict that is inconsistent with comparative negligence law, and
• the elements necessary to warrant a jury instruction on spoliation of evidence.

Each provides concrete takeaways for trial practice.

Factual and Procedural Background 

Richard Hope and his daughter, Deborah Oliver, went to a Liberty Bank branch in Willimantic on January 19, 2016. Hope, who was eighty-seven years old and used a cane or walker to ambulate, was unable to park in the handicap space because it was occupied and instead, parked two spaces away. 

As Hope exited the bank and returned to his vehicle, he stepped down from the sidewalk into the parking lot. Within one or two steps of the curb, he fell in an uneven linear depression in the asphalt located immediately adjacent to the sidewalk and within the normal walking path for patrons entering or exiting parked vehicles. Hope fell on top of Oliver, injuring both of them. 

The evidence showed that the depression ran lengthwise along the sidewalk and through multiple parking spaces. Photographs depicted white parking lines painted over the depressed area, and expert testimony explained that the condition likely resulted from an improperly compacted excavation that had existed for a significant period of time. 

Both plaintiffs suffered severe injuries. Hope sustained a partially severed spinal cord, resulting in paralysis and a profound loss of independence. He died in 2019, before trial. Oliver fractured her femur, could no longer work, and experienced increased dependency and a decline in her quality of life. Oliver did not testify at trial. 

A premises liability action was brought against Willimantic Partners, LLC, the property owner. After a five-day jury trial, the jury initially returned verdicts in favor of both plaintiffs but allocated fault at 70 percent to each plaintiff and 30 percent to the defendants. The trial court advised counsel that the verdict presented a legal problem under Connecticut’s comparative negligence law. 

After reinstruction on comparative negligence, the jury reconsidered its verdict and returned revised findings, allocating 100 percent of the fault to the defendants. The jury awarded Oliver $318,900 and Hope’s estate $1,125,900. The trial court accepted the revised verdicts and denied the defendants’ postverdict motions. The defendants appealed. 

Proving a Specific Defect and Constructive Notice 

The defendants’ first appellate claim was that the trial court improperly denied its motion for judgment notwithstanding the verdict because the evidence was insufficient to establish (1) the existence of a specific defect that caused the fall, and (2) that the defendants had actual or constructive notice of that defect. The Appellate Court rejected both arguments.

Evidence of a Specific Defect 

The defendants argued that the plaintiffs failed to identify the specific defect that caused Hope’s fall, asserting that the evidence showed only general unevenness in the parking lot rather than a specific dangerous condition. 

The Appellate Court disagreed. Relying on established premises liability principles, the Court reiterated that a plaintiff must prove the existence of the specific defect that caused the injury but need not do so with mathematical precision. 

In reaching its conclusion, the Court emphasized the role of the plaintiffs’ expert testimony, Mark Tebbets (Master Code Professional). The expert identified a distinct, elongated depression in the asphalt located immediately adjacent to the sidewalk and explained that the condition was consistent with an improperly compacted excavation beneath the surface. The expert further testified that such a defect would deteriorate gradually over time as traffic and environmental conditions caused the unsupported asphalt to sink. 

This expert testimony was corroborated by photographic evidence showing a linear sunken area running parallel to the curb, as well as testimony from fact witnesses describing the location of Hope’s fall. Taken together, the evidence allowed the jury to identify a specific defect in a defined location—an uneven depression in the walking path where patrons would reasonably step when exiting parked vehicles. 

The Appellate Court rejected the defendants’ attempt to recharacterize the condition as mere general disrepair. When viewed in the light most favorable to sustaining the verdict, the expert testimony, photographs, and witness descriptions collectively supported the jury’s finding that a specific defect existed and caused the fall. 

Practical Takeaway for Plaintiffs’ Attorneys 

A plaintiff need not prove a specific defect with mathematical or scientific certainty. A combination of circumstantial evidence—including photographs, witness testimony, and expert explanation—can permit the jury to identify a specific defect. 

Evidence of Actual or Constructive Notice 

The defendants separately argued that even if a specific defect existed, the plaintiffs failed to prove that the defendants had actual or constructive notice of that defect. 

The Appellate Court again disagreed. Although there was no evidence of actual notice, the Court focused on whether the jury reasonably could have found constructive notice—that is, whether the defect existed for a sufficient length of time such that the defendants, in the exercise of reasonable care, should have discovered and remedied it. 

The Court highlighted several pieces of evidence supporting constructive notice. Most notably, photographs admitted at trial showed that white parking space lines had been painted directly over the depressed area. From that fact alone, the jury reasonably could infer that the defect existed at the time the parking lot was last striped. 

The jury also heard expert testimony explaining that the depression was consistent with long-term deterioration caused by an improperly compacted excavation rather than a sudden or transient condition. Taken together, this evidence permitted the jury to conclude that the defect developed gradually and existed long enough to find that the defendants had constructive notice of the defect. 

The Appellate Court emphasized that constructive notice may be established through circumstantial evidence and reasonable inferences drawn from the condition’s appearance, location, and apparent age. 

Practical Takeaway for Plaintiffs’ Attorneys 

Constructive notice rarely turns on direct proof. Evidence that a defect was painted over, weathered, or structurally integrated into the premises can support a finding that the condition existed long enough to impose notice, even in the absence of prior complaints or reports. 

Use of a Decedent’s Statements in a Joint Premises Liability Action 

A second issue involved the admission of the decedent, Hope’s prerecorded statement describing the circumstances of his fall. Because Hope died before trial, the statement was admitted under Connecticut’s dead man’s statute, General Statutes § 52-172.

The defendants raised concerns about the use of the statement in two ways: first, through a pretrial motion in limine challenging its admissibility, which the trial court did not rule on and which was not reclaimed at trial; and second, by requesting a limiting jury instruction that would have restricted the jury’s consideration of the statement to Hope’s estate.

On appeal, the defendants argued that even if the statement was admissible as to Hope’s estate, the jury should have been instructed not to consider it in connection with Oliver’s claims. The Appellate Court rejected that argument, holding that the statute does not limit the use of a decedent’s statements to only the decedent’s claims in a joint action. Once admitted as a full exhibit, the statement was evidence in the case and could be considered by the jury as to all plaintiffs. 

Practical Implications of the Dead Man’s Statute in Joint Actions 

For plaintiffs litigating joint actions, Hope confirms that a decedent’s statement admitted under General Statutes § 52-172 may be relied on across claims and plaintiffs. The jury may consider the statement for all plaintiffs, not just the decedent’s estate. Plaintiff’s counsel should assume broad admissibility and be prepared to rely on the statement as part of the overall evidentiary narrative. 

A Cautionary Note on Issue Preservation 

The Appellate Court noted that the defendants’ challenge to the scope of the decedent’s statement was not ideally preserved. Although the defendants raised the issue in a motion in limine, it did not request a limiting instruction when the evidence was admitted and did not propose a jury instruction addressing how the statement should be used. 

The Court ultimately reached the merits, but its discussion highlights an important preservation principle for trial counsel: objections to admissibility and objections to jury instructions are separate procedural steps. A motion in limine may address whether evidence comes in, but it does not, by itself, preserve objections to how the jury is instructed to consider that evidence. And if a party fails to preserve its objection by requesting a ruling from the trial court on the pending motion in limine, the Appellate Court likely will decline to review any claimed error on appeal on that basis. Here, the defendants avoided that outcome because they raised the issue through requesting a jury instruction.

If the trial court defers ruling on your motion in limine until trial, ensure that you object at the time the other party seeks to introduce evidence and obtain a ruling on your motion. Failure to do so risks waiver of any appealable issue.

And if the evidence can be addressed through a limiting instruction, consider renewing your objection during the charging conference, consistent with preserving evidentiary and instructional issues at trial under the CORE4 framework.

Relying solely on a pretrial motion in limine can leave preservation gaps that complicate appellate review. 

Jury Reconsideration of Comparative Negligence Findings 

The defendants also appealed the trial court’s decision to allow the jury to reconsider its initial verdict after the court identified an inconsistency in the comparative negligence allocation. 

The Appellate Court reaffirmed that, before a verdict is accepted, a trial court may reinstruct the jury and permit further deliberation to ensure that the verdict complies with the law. On reconsideration, a jury may change its findings as to both liability and damages. Under these circumstances, the trial court did not abuse its discretion in accepting the jury’s second verdict. 

Practical Takeaway for Plaintiffs’ Attorneys 

An initial inconsistent verdict does not necessarily end the case. Trial courts retain discretion to reinstruct juries and permit reconsideration before accepting a verdict, including reconsideration of comparative negligence findings. Clear verdict forms and careful attention to comparative negligence instructions remain critical in premises liability trials. 

A Note on Preserving the Record for Appellate Review 

The discussion regarding the inconsistency in the verdict and the decision to reinstruct the jury occurred during an off-the-record conference. Although the Appellate Court was able to resolve the issue, the posture of the record underscores a recurring preservation concern. 

When verdict inconsistencies arise, trial counsel should ensure that discussions about reinstruction, objections, and proposed remedies are placed on the record. Off-the-record conferences may resolve issues efficiently in the moment, but they can leave gaps in the appellate record that complicate review. Making a clear record—either by requesting that the conference be recorded or by summarizing the substance of the discussion on the record afterward—helps ensure an adequate record for appellate review. 

Requesting or Opposing a Spoliation Jury Instruction: What the Trial Court Must Find 

The defendants also claimed that the trial court improperly declined to instruct the jury on spoliation of evidence based on the absence of a letter that had allegedly been part of expert Mark Tebbets’s file. In rejecting that claim, the Appellate Court clarified what is required to request a spoliation instruction and when a trial court may properly deny one. 

To warrant a spoliation (adverse inference) instruction, the trial court must be satisfied that the instruction is reasonably supported by evidence that:
 

1. the spoliation was intentional and not merely destroyed inadvertently, 
2. the destroyed evidence was relevant to the issue for which the party sought the adverse inference, and 
3. the party seeking the adverse inference must have acted with due diligence as to the spoliated evidence. 

The Court emphasized that a spoliation instruction is not automatic. The determination of whether this evidentiary predicate has been satisfied rests with the trial court, which acts as a gatekeeper.

On appeal, the Appellate Court affirmed the trial court’s decision not to provide the spoliation instruction. The Court concluded that the trial court acted within its discretion in declining to give a spoliation instruction. On the first prong, the record did not establish that the missing letter from the expert’s file was intentionally destroyed or withheld. And there was “scant” evidence in the record on the second and third prongs; that little evidence did not support providing an instruction. 

A Cautionary Note on Remedy and Harmless Error on Appeal 

The Appellate Court identified an independent reason why the defendants’ claim failed. Even if the trial court had erred in declining to give a spoliation instruction, the defendants did not argue that the absence of the instruction was harmful or explain how it would entitle the defendants to a new trial. 

The Court reiterated a core appellate principle: a party seeking relief must demonstrate not only error, but harm. Failure to brief harmfulness or connect the alleged error to the remedy sought may foreclose appellate relief, regardless of the merits of the underlying claim. 

Final Thoughts 

Hope v. Willimantic Partners, LLC  illustrates how premises liability appeals often turn on the quality of the trial record rather than novel legal doctrine.  

For plaintiffs’ attorneys, this decision underscores the importance of: 

• Precisely identifying the defect through circumstantial and expert-supported evidence, 
• Using reasonable inferences to establish constructive notice, 
• Making a clear record when verdict issues arise, and 
• Addressing both error and harm when seeking appellate relief. 

Premises liability cases often benefit from appellate input well before trial. Appellate counsel can work alongside trial attorneys to help shape strategy, preserve issues, and develop a record that supports postverdict and appellate options.

To learn more, contact me.