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Welcome to our Supreme and Appellate Court summaries webpage.  On this page, I provide abbreviated summaries of decisions from the Connecticut appellate courts which highlight important issues and developments in Connecticut law, and provide practical practice pointers to litigants.  I have been summarizing these court decisions internally for our firm for more than 10 years, and providing relevant highlights to my municipal and insurance practice clients for almost as long.  It was suggested that a wider audience might appreciate brief summaries of recent rulings that condense often long and confusing decisions down to their basic elements.  These summaries are limited to the civil litigation decisions based on my own particular field of practice, so you will not find distillations of the many criminal and matrimonial law decisions on this page.  I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my opinion . . . and when mistakes of trial counsel are highlighted because they triggered a particular outcome, I will try to be mindful of the adage . . . “There but for the grace of God . . ..”  I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted July 11, 2013

After a large jury award to the plaintiff who was molested by a doctor purporting to conduct growth studies of children under a hospital-sanctioned research project, the defendant hospital only appealed the issues of three jury instructions.  The majority held that while a defendant does not have to anticipate the criminal conduct of a bad actor, it may still be liable in negligence when the defendant’s conduct makes it more likely that the criminal act will occur against a plaintiff to whom the defendant owes a special duty of care.  Here, the defendant did not challenge whether there was sufficient evidence for a jury to conclude that a reasonably prudent hospital would have taken steps to avoid the risk of injury to children.  Therefore, the Trial Court properly refused to charge the jury that the hospital knew or should have known of the criminal acts of the doctor.  (This is an important case to review if you have a case where it is alleged that the negligence of the defendant allowed the criminal act or a third party to hurt someone.)  The Court noted that this case presented an exception to the general rule of non-liability for the criminal acts of third parties when the defendant’s own conduct creates or increases the foreseeable risk that a person will be harmed by the criminal conduct of a third party.  The Court also noted that a second exception to that general rule applied to this case, as well.  That is when a defendant has a special relationship with the injured plaintiff, imposing a duty of protection over them.  Under this exception, one who takes custody of another person may have a duty to protect that person from intentional misconduct of a third person.  Here, it was reasonably foreseeable that the hospital’s failure to supervise the doctor’s growth study would result in sexual abuse of the patient, even though it did not know that he was a pedophile.

Next, the hospital challenged the refusal of the Court to instruct the jury that its bylaws did not establish a standard of care.  Those bylaws stated that all research should be followed and reviewed by the research committee.  The Court noted that while it is true a violation of an employer’s work rules can be evidence of negligence, but does not establish a standard of care, the decisions upholding that principle, were only in cases where there was no expert testimony  establishing the Bylaws as being the equivalent to the standard of care.  Here, the plaintiff presented expert testimony, claiming that the hospital bylaws were representative of the standard of care.  The Court again noted, however, that introduction of hospital regulations without supporting expert testimony would be insufficient to establish the standard of care, but that was not the case here.

Finally, the hospital challenged the jury instruction that the hospital owed a special duty to protect the children from harm if it was a custodial relationship.  The Court held that the jury implicitly found that there was a custodial relationship triggering the heightened duty to protect the children.  The hospital’s suggestion that the doctor’s criminal acts terminated the custodial relationship with the hospital was not supported by any law.  The Court has consistently held that children outside the supervision of their parents require “special protection.”

In a Footnote, the Court suggested the hospital should have requested an instruction to the jury that one factor to consider was whether or not the hospital had knowledge of the propensity of the doctor to commit pedophiliac acts.  In another Footnote, the majority noted that the dissenting opinion argues that an action against the defendant for negligently failing to supervise a third party who engages in criminal conduct cannot succeed, unless it is shown that the defendant knew or should have known of the third party’s criminal propensities.  The majority reject this contention and flatly assert that it is an incorrect statement of the law.  Another Footnote seemed puzzled by why the plaintiff did not pursue the Trial Court’s refusal to provide a superseding cause instruction.

Another Footnote partially rebukes the dissent for claiming the plaintiff was relying upon a fiction by framing the case as one of failing to monitor a research program without focusing in on the researcher and their conduct.  The majority stated that it was the dissenting Justice who was relying on a fiction, trying to suggest there was a distinction between supervising research and supervising the employee conducting the research.  The difference is merely one of semantics, the majority said.

Much of the footnoting discusses that the Restatement of Torts, noting its importance to CT negligence law being the basis for the standard Connecticut Jury Instructions.  It is interesting to note that the Court decision repeatedly notes that the hospital did not challenge whether the plaintiff’s evidence was sufficient to establish liability.  One must wonder if the Court was using that as a justification for its decision, or a criticism of the defendant, hinting they might have ruled otherwise.

This decision held that a governmental unit, the Metropolitan District Commission, was not immune from liability when a bicyclist crashed into a gate on property operated by the Water Company.  Maintenance at the gate was deemed to be a proprietary function, subjecting the governmental entity to liability under C.G.S. § 52-667(n)(a)(1)(B).  The public was allowed to use the Water Company land for recreational activities, including biking, but installed a gate to prevent motor vehicles from accessing a road on the site.  These were pipe gates affixed to vertical posts, painted yellow and suspended about three feet above the ground.  The gates were kept closed at all times for security, and the bicyclist coming down a hill did not see it, tried to duck under it and hit her head.  (What happened to being responsible for your own conduct?)  The Court held that a proprietary function is an act done by a political subdivision for its own benefit or that of the inhabitants.  Generally, the operation of a water utility such as by a municipality, is a proprietary function.  Prior decisions have held that a municipality is immune from liability, such as where a biker was injured on open space or where a jogger was shot by a hunter on watershed land.  Such acts were unconnected to the proprietary function of the government unit.  Here, however, the maintenance of a gate was inextricably linked to the proprietary function of providing water, exposing the governmental unit to potential liability.  The plaintiffs alleged that type gate was improper for a known bike path at the base of a hill without the posting of warning signs.

The Court noted that the focus must be on the defendant/municipal use that causes the injury, and not the plaintiff’s use of the property.  Otherwise, the municipal entity could escape liability to a bicyclist injured by a protruding water pipe sticking out of the ground, by arguing the pipe’s use was solely for a governmental purpose.  The Court went on to note that if the Legislature wanted to carve out immunity for recreational uses of the land for municipalities and governmental entities, it could do so.  (Note: Since this trial court decision, C.G.S. § 52-557(g) was amended in 2011 to provide the same immunity to municipalities that private landowners enjoy for recreational use of property, except for swimming pools, playing fields and buildings.)

In another Footnote, the Court noted that the right of the Federal Government to claim immunity under the old recreational immunity statute, was specific to the Federal Torts Claim Act.  Therefore, that law cannot be applied to Connecticut municipalities.  In yet another Footnote, the Court noted that the current statutory immunity for recreational injuries afforded to municipalities passed in 2011 was not retroactive. 

In the last Footnote, the Court noted that it has always been the law that opening up unimproved land to unsupervised recreation without charge has historically been considered a governmental function for which immunity attaches….i.e., had there been no gate, there would be no liability….or crazier still….had the gate been to limit access to the open space as opposed security for the water company…there would have been no liability. The Court admitted that Connecticut is in a minority of jurisdictions that continue to adhere to the governmental/proprietary distinction when deciding whether or not government immunity should apply, with many criticizing it as an indiscernible quagmire.  But the Court felt its hands were tied with the current statutory framework No wonder CT finds itself in the minority.  That is a foolish way to split the baby.

This was a matrimonial decision that held that a Trial Court must determine the specific dollar amount of a party’s earning capacity, when it bases a financial support order on that capacity.  Two Justices dissented, agreeing that a Trial Court should state either the precise amount or a range of earning capacity, but did not believe the majority should have used the Court’s supervisory authority to apply the Rule to the present case.

  • SC18817 - Patel v. Flexo Converters U.S.A., Inc.

The Trial Court property granted summary judgment to the employer who was sued by the employee injured by machinery she claimed had been altered by disabling a safety feature.  The plaintiff claimed the manager instructed her to reach into the machine to dislodge the jammed item, and claimed that the manager must have known this would lead to substantial injury.  The Trial Court granted summary judgment on the grounds that a worker’s compensation claim was the exclusive remedy, and even if the manager’s actions arose to the substantial certainty of injury exception to the exclusivity of worker’s compensation, the manager was not the alter ego of the company for the purposes of that exception.  Prior decisions have refused to extend the exception to the acts of supervisory employees.  The person must be of such rank in the corporation that they may be deemed an alter ego of it.  It is not enough that the supervisor was a foreman, or as in this case, a night supervisor.  The plaintiff had not rebutted the affidavits asserting that the supervisor was not authorized to make policy regarding machine operation for the company.  Summary judgment was deemed properly granted to the employer.

Defendant trespassed on plaintiff’s land and removed multiple trees without permission.  The Trial Court awarded damages to the plaintiff reflecting the diminution in the value of the land as a result of the tree removal.  On appeal, the issue is whether or not C.G.S. § 52-560 provides the exclusive measure of damages in a tree cutting case, or can common law damages be obtained in the alternative.  The Court agreed with the Appellate Court that C.G.S. § 52-560 does not preempt the common law.  C.G.S. § 52-560 provides an enhancement of common law damages by providing for treble damages in certain circumstances where the reasonable value of the timber is sought.

The issue on this appeal was whether a municipal assessor has the authority under C.G.S. § 12-55(b) to conduct an interim assessment of a property and increase its valuation based on partially completed construction.  This decision reversed the Trial Court conclusion that C.G.S. § 12-55(a) only applies to “completed new construction” and there is no authority to assign value to a partially completed construction.  In this case, the assessor increased the assessment for the value of a partially constructed three-story house when he determined it was 35% complete.  The property owner claimed a municipality cannot tax incomplete new construction.  The Court agreed that C.G.S. § 12-55(b) provides municipal assessors with broad authority to conduct interim assessments.  The power to equalize the Grand List, imports a watchtower role for the assessors to correct inequalities, whether too high or too low.  The property owners’ improvement to their property increased its value, justifying the increase in the assessment.  Nowhere in the legislative scheme of taxation does it provide that partially completed construction is exempt from taxation.  The requirements under C.G.S. § 12-55(a) for a new assessment upon completion of new construction simply imposes a mandatory timeframe when the assessor must reassess; it does not prohibit interim reassessment while construction progresses.

A Footnote noted that the 2012 amendments to the Statute would appear to permit reassessment of partially completed construction, just as they were concluding in this case.

In a first decision authored by our former partner, Justice McDonald, this case deals with securitized mortgage loans.  Justice McDonald notes that the securitization of mortgages has resulted in increasingly complex and attenuated relationships between the borrowers and the lenders, giving rise to multiple challenges to standing of the parties to bring foreclosures.  This case dealt with whether or not the loan servicer could have standing in its own right to institute a foreclosure action against the mortgagor and the holder of the foreclosure rights by way of a transfer under the UCC.  This action involved a nonrecourse commercial loan with what is often called a “bad boy guarantee.”  The original lender then assigned the mortgage to a securitized pool supervised by a trustee with J. E. Robert acting as special servicer.  It was neither the original lender, nor the pool trustee who brought the foreclosure, but rather the loan servicer, J. E. Robert.  The note was then assigned again, and J. E. Robert moved to substitute the assignee as plaintiff.  The assignee then moved to amend the complaint to add in the guarantors, claiming that the bad boy provisions had been violated, and therefore, they were on the hook for any deficiency.  Summary judgment was entered in favor of the plaintiff, but the defendants moved to dismiss, claiming that the original plaintiff, J. E. Robert, was a mere servicer of the loan, rather than holder of the note and mortgage, and therefore lacked standing to initiate the foreclosure action.  The Trial Court concluded that J. E. Robert had standing as a transferee/non-holder pursuant to C.G.S. § 42a-203 and C.G.S. § 42a-203-301, and as such, was a nominal party-in-interest for the pool trustee, when it initiated the suit.  The Supreme Court agreed with the Trial Court that J. E. Robert had standing in its own right.  This standing was established through the pooling agreement, wherein the trustee transferred the rights to enforce the note and mortgage under those statutes to J. E. Robert.  A plaintiff’s right to enforce a promissory note may be established under the Uniform Commercial Code which, in turn, can provide enforcement rights to one other than the holder of the instrument.  The mortgage, in turn, follows the note.  (See C.G.S. § 49-17).  It is only when the note and mortgage are owned by two different entities where the owner of the former cannot commence a foreclosure of the latter.  C.G.S. § 49-17 simply requires a party to prove they are the person entitled to receive the money secured by the mortgage, and that may be someone other than the owner of the note.  There is no public policy reason to preclude loan servicers from commencing foreclosure actions.  Here, the pool servicing agreement specifically provided that J. E. Roberts shall exercise reasonable efforts to foreclose upon the property securing the mortgage, and the right to determine the pursuit of a deficiency judgment.  Thus, J. E. Roberts was not an agent for the pooling trustee, but rather, its independent contractor.  Had it been merely an agent, it would have lacked standing.

Next, the decision held that the Trial Court was allowed to rule first on the plaintiff’s motions for summary judgment, and then use that as a basis to deny the much-later-filed motion for summary judgment on the same counts by the defendant.  The defendant never asked the Trial Court to hold its decision on the plaintiff’s motion for summary judgment in abeyance, and did not show any reason why they could not have offered their evidence in opposition to the plaintiff’s motion for summary judgment.  Summary judgment was also properly granted, finding full liability for the deficiency, when the guarantors transferred away a contractual parking right without consent of the lender in violation of the mortgage documents.

Finally, the decision held that the Trial Court also properly granted a prejudgment remedy in favor of the lender against the individual guarantors for the anticipated deficiency.  The evidence presented by the plaintiff was sufficient to generate an educated prediction as to the probable amount of the deficiency.  Evidence of a debt of over $13 million and a fair market value estimate of the property at $6 million justified a $7 million prejudgment remedy.

  • SC18955 - Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership

The issue in this case was whether a corporate officer may be held personally liable for the tort of negligent misrepresentation for statements made that would independently bind the corporation for contractual liability.  The Trial Court had stricken the claims of personal liability and tort against the company officer, but the Appellate Court reinstated them.  The Supreme Court, agreed with the Appellate Court.  The decision agrees with the plaintiff, that the defendant’s efforts to deny accountability for statements attributed to him and conveyed to the plaintiff through an agent, were nothing more than a transparent attempt to evade individual accountability for false statements, when there was reliance and resultant harm.  It is well-settled that a plaintiff has a right to plead tort and contract claims in the alternative, and that an officer or corporate agent may be personally liable for their own torts, regardless of a corporate structure.  Here, the plaintiff properly pled that the corporate officer’s actions of making misrepresentations were in his own personal capacity, for his own personal benefit, and were aside from any liability of the corporation.  It is appropriate to plead a contractual claim against the corporate entity under the apparent authority doctrine, and yet alternatively plead a claim of negligent misrepresentation against the principal of that corporate entity.  It is only duplicate recovery of damages that is prohibited.

 

The facts and holdings of any case may be redacted, paraphrased or condensed for ease of reading.  No summary can be an exact rendering of any decision, however, so interested readers are referred to the full decisions.  The docket number of each case is a hyperlink to the Connecticut Judicial Department online slip opinion.  ©2013 Pullman & Comley, LLC. All Rights Reserved.

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