Key Points

  • The Connecticut Appellate Court reversed a defense verdict for Target and ordered a new trial because the trial court refused to instruct the jury on the nondelegable duty doctrine.
  • Target conceded that the instruction accurately stated the law, that it hired independent contractors to design, build and maintain the roadway, and that it controlled the premises.
  • Expert testimony gave the jury a basis to find that the missing center yellow line, required by the State Traffic Commission-approved site plan, was a defect and a substantial factor in the plaintiff's injuries.
  • The court held that the absence of prior similar accidents is not dispositive of whether a condition is unreasonably dangerous; such evidence ordinarily goes to notice.
  • Following Garcia v. Cohen, the court held the error harmful because the allocation of negligence among Target, its contractor and the driver was intertwined with the omitted instruction.

A Connecticut appeals court on Tuesday threw out a jury verdict for Target Corp. in a lawsuit by a shopper who was struck by a car in a crosswalk outside its New Britain store, holding that the trial judge should have told jurors that a business that controls its premises cannot shed responsibility for them by pointing to the contractors it hired.

A three-judge panel of the Connecticut Appellate Court reversed the judgment and ordered a new trial for the plaintiff, Wendy C. Villalobos. Judge Clark wrote the opinion, and Chief Judge Cradle and Judge Seeley concurred.

The ruling turns on the nondelegable duty doctrine, under which a property owner that controls its premises is vicariously liable for the negligence of independent contractors it hires to work on them. Target's counsel told the jury that outside engineers designed its lot, and a Target representative testified that a paving vendor failed to repaint a center yellow line. Without the instruction, the panel held, jurors could have blamed the contractors and cleared Target.

On Oct. 12, 2016, Villalobos was pushing her shopping cart through the crosswalk in front of the store's main entrance when Pamela Duval made a wide right turn from a parking aisle onto the roadway and hit her in the northbound lane. Duval, who is nearsighted, was not wearing her eyeglasses and did not see Villalobos until the moment of impact.

Surveillance video showed that Duval's vehicle was "considerably over the center of the roadway at the point of impact," the court wrote, and that most vehicles leaving the lot made the same wide turn.

Villalobos sued in 2018, alleging that Target negligently failed to install stop signs at the crosswalk and to divide the roadway's lanes with a yellow line. Target denied the claims and sought to apportion fault to Duval, who settled a separate suit before trial.

Before trial, Target repeatedly represented in affidavits, filings and depositions that the site plan approved by the State Traffic Commission did not call for a center yellow line and that none had ever existed. On the second day of evidence at the trial, which began in January 2024, Target stipulated that the certified plans did call for the line, that it was present when the store was built in 2000 and that it was gone by 2016.

Target's trial defense also pointed to its contractors. In her opening statement, Target's counsel told jurors that "Target did not design the lot or the layout. Target hired [VHB] Design Professionals to do that." She added that a vendor hired to repave the lot was supposed to repaint it as designed and that "that may not have happened and that is wrong." A Target representative testified that the vendor failed to repaint the line.

Judge Knox nonetheless declined Villalobos' request to instruct the jury on the nondelegable duty doctrine, ruling that it did not apply, and the jury returned a verdict for Target.

On appeal, Target did not dispute that the requested instruction accurately stated the law, that it hired contractors to design, build and maintain the roadway, or that it controlled the premises. It argued instead that the missing line was not a defect at all, contending that the lack of a center line was "at worst, an imperfection."

The panel disagreed. It cited testimony from Villalobos' expert, engineer Jeffery Cissell, that about 7,000 vehicles a day use the roadway and that a center line would have kept turning drivers in their lanes. That evidence, the court held, let a jury find the missing line was "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."

The court also rejected Target's argument that the injury was not foreseeable. "Indeed, the sole purpose of such a line is to prevent the very type of harm that occurred in this case ...," Judge Clark wrote. In a footnote, the panel dismissed Target's reliance on the absence of similar incidents in the prior two years, writing that it knew of no authority holding "that the absence of prior, similar accidents is dispositive of whether a condition is unreasonably dangerous." Such evidence ordinarily goes to notice, the court said, and notice was not at issue because Target had stipulated that a contractor omitted the line.

On causation, the panel held that a jury could assume Duval would have obeyed a painted line. "Causation is proven by probability, not certainty, and juries routinely must decide what a person probably would have done under the circumstances," the court wrote.

Target argued that any error was harmless because Duval's failure to wear her glasses caused the crash. The panel held that jurors could have found that the aisle layout, sun glare and the store's shadow, not her eyesight, kept Duval from seeing Villalobos.

If jurors concluded that the repaving contractor was negligent, the doctrine would have required some allocation of liability to Target "even if the jury had found that Duval bore the lion's share of the blame for the accident," the court wrote. Relying on its 2021 decision in Garcia v. Cohen, a slip-and-fall case involving snow-removal workers, the panel concluded that "without the requested instruction, the jury had no untainted route to the verdict."

The court did not reach Villalobos' other claims, including challenges to limits on her expert's testimony and the denial of discovery sanctions.

Villalobos was represented by Jennifer B. Levine; Target was represented by Brian M. Paice.

The case returns to Superior Court in New Britain for a new trial. Deadlines for postopinion motions and petitions for certification run from the Oct. 20 release date.