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XIUKUN LIN, ADMINISTRATOR (ESTATE OF YAN YAN ZHANG) v. NATIONAL RAILROAD PASSENGER CORPORATION ET AL. (SC 17346)
Sullivan, C. J., and Norcott, Katz, Vertefeuille and Zarella, Js. Argued October 27, 2005--officially released January 31, 2006

William F. Gallagher, with whom, on the brief, was Hugh D. Hughes, for the appellant (plaintiff).

Robert C. E. Laney, with whom were Sarah F. DePanfilis and, on the brief, Charles A. Deluca, for the appellee (defendant Metro-North Commuter Railroad Company).
Opinion

SULLIVAN, C. J. The plaintiff, Xiukun Lin, administrator of the estate of Yan Yan Zhang, the plaintiff's decedent (decedent), brought this wrongful death action against the defendant Metro-North Commuter Railroad Company,1 alleging that the defendant negligently had maintained certain real property. The jury returned a verdict for the defendant and the trial court rendered judgment in accordance with the verdict. The plaintiff appeals2 from the judgment claiming that the trial court improperly: (1) refused to instruct the jury on the misled invitee doctrine; (2) instructed the jury that the decedent had to be a constant trespasser for the constant intruder doctrine to apply; and (3) refused to instruct the jury that it could not find that the decedent was a trespasser if it found that the defendant did not own or have exclusive possession of the property. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On October 17, 1998, the decedent was struck and killed by a train while walking on a railroad trestle over the Indian River in Milford. The trestle crosses the Indian River in an east-west direction and is elevated on an embankment approximately twenty feet high. The decedent had gone to the Indian River to catch crabs with the plaintiff, the plaintiff's wife, Li Li, and a man identified by the parties only as ``Mr. Jou.'' They arrived in the area at approximately 12:40 p.m. and parked their car on the north side of New Haven Avenue in Milford, at a point where the road is approximately 200 feet south of and parallel to the railroad tracks and trestle. The group then followed a path over vacant land to the western end of the trestle. They crossed the trestle to the east side of the river and then walked in a northerly direction to an area where they could catch crabs. They remained in the area for approximately one hour and twenty minutes, during which time as many as four trains went over the trestle. Shortly before 2 p.m., the decedent and Li Li decided to return to the west side of the river. Li Li walked in front of the decedent as they crossed the trestle. As Li Li stepped off the trestle, she looked up toward the tracks and saw a train right in front of her, heading east. The train struck and killed the decedent. The plaintiff filed an amended complaint alleging that the death of his decedent was a result of the defendant's negligent maintenance of the trestle. The defendant raised several special defenses, including that the decedent's death was a result of her own negligence in that she placed herself in danger by trespassing on the train

tracks. The defendant also argued during certain pretrial proceedings that the decedent was a trespasser who had entered upon the land without the consent of the owner and, therefore, that the defendant had no duty to her to keep the land safe. At trial, the jury heard evidence that the state of Connecticut owned the railroad trestle and had granted rights of use to the defendant. The defendant was fully responsible for the maintenance and upkeep of the trestle and the railroad tracks in the vicinity of the trestle, including a seventy foot right-of-way on both sides of the tracks. The jury also heard evidence that the department of environmental protection had issued a publication entitled the ``Angler's Guide'' that designated the portion of the Indian River near the railroad trestle as a legal fishing, crabbing and duck hunting area. Several witnesses testified that, over a period of years, they regularly had used paths leading to the trestle and had crossed the trestle in order to catch crabs on the east side of the Indian River. They also had observed others do so. They testified that they never had observed signs or fences indicating that the area was private property. The only place to walk on the trestle was on the ties of the railroad tracks, which had open spaces between them. There was no area specifically designed for pedestrian traffic. At the conclusion of the evidence, the plaintiff requested that the trial court instruct the jury on the misled invitee doctrine.3 The trial court declined to give the requested instruction. The jury returned a special verdict finding that the decedent had been a trespasser and that the accident had not been proximately caused by the defendant's negligence. The plaintiff then filed a motion to set aside the verdict, which the trial court denied. Thereafter, the court rendered judgment for the defendant in accordance with the verdict. This appeal followed. I We first address the plaintiff's claim that the trial court improperly refused to instruct the jury on the misled invitee doctrine. We disagree. At the outset, we set forth the standard of review. ``The court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding.'' Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982). Whether the evidence presented by the plaintiff could support a finding that the decedent was a misled invitee is a question of law over which our review is plenary. See Zachs v. Zoning Board of Appeals, 218 Conn. 324, 331, 589 A.2d 351 (1991) (``[t]he sufficiency of the evidence to support a finding . . . clearly presents a question of law''). A review of the evolution of the misled invitee doctrine in this state provides the legal background for our resolution of this claim. This court first adopted a

version of the misled invitee doctrine in Crogan v. Schiele, 53 Conn. 186, 1 A. 899 (1885). In that case, the plaintiff was injured when she fell into a pit located on the defendant's property between a public sidewalk and the defendant's building. Id., 197. The area surrounding the pit was paved with the same material and in the same manner, and was on the same grade as the public sidewalk. Id. The plaintiff brought an action against the defendant claiming that he negligently had maintained the property. Id., 186

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