Appellate Court Notes: Week of January 12
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. I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my own personal opinion.. Pullman & Comley’s Appellate Practice Group of which I am a member includes experienced appellate advocates in almost every area of the law. Should you have a need to consult about a potential appeal, please email me at firstname.lastname@example.org I hope the reader finds these summaries helpful. – Edward P. McCreery
Posted January 12, 2015
This is a continuation of an earlier Appellate Court decision I reported on, which held the landlord responsible when a ten-year old picked up a piece of loose concrete, carried it up to the third floor of the apartment building and dropped it on a seven-year old’s head. The tenants had previously complained about the bad condition in the rear of the building. The Trial Court granted the landlord summary judgment, holding no juror could conclude that those injuries were foreseeable acts resulting from the alleged negligence. A divided Appellate Court reversed, and held it was an issue for the jury. A majority of a divided Supreme Court sided with the Appellate Court majority and agreed that it was an issue for the jury. They agreed with the Appellate Court that the liability should have been looked at from the point of view of the bigger picture of a child likely to be hurt by a piece of loose concrete being thrown by another child after the property was not cleaned up by the landlord, and not to the specific facts of concrete being carried up three flights of stairs. Focusing on foreseeability, the Supreme Court said you must first ask whether the injury would have occurred but for the actor’s conduct, but subject to the limitation of “proximate cause” as to how far down the causal continuum the tortfeasor would be held liable. The test for proximate cause is whether the landlord’s conduct was a substantial factor in producing the injury, and that is, whether the harm occurred was of the same general nature as the foreseeable risk created by the negligence. Then, focusing on a landlord’s duty to maintain the common areas, it was up to a jury to decide whether the landlord should have recognized this risk and taken precautions to prevent it. The Court held that loose pieces of sharp concrete in an area known by the landlord to be where tenant children play, cannot be deemed harmless. In light of the obligation of society to keep children away from dangerous conditions, these are all factors for the jury to consider.
Next, the Supreme Court turned to whether or not, as a matter of public policy, including the avoidance of increased litigation, should the Court put a limit on the imposition of such a duty upon a landlord. Here, the Court declined to do so, because of the pre-existing common law and statutory duty requiring landlords to maintain common areas of leased premises in reasonably safe conditions. The Court rejected the landlord’s suggestion that allowing such claims was tantamount to imposing strict liability on landlords for any injury by any object thrown by a tenant’s child. The Court also rejected the idea that allowing this claim would increase litigation suggesting, to the contrary, that it would cause landlords to act more responsibly towards their tenants. All landlords would have to do is regularly inspect their properties for hazards.
Finally, the majority also rejected an argument that the child’s actions were the sole proximate cause of the injuries, thus cutting off any legal proximate cause of the defendant landlord’s negligence. In a Footnote, the majority suggested a different analysis would apply if, for example, a child went up to the third floor and removed a flower pot from a neighbor’s stoop and then dropped it on another child. [Not sure I see the fine distinction here but they suggested every child would know that was wrong. Really?.]
In another Footnote, the Court rejected what seems to have been a stupid argument by the landlord that a reasonably safe environment in an urban setting has a different meaning than a suburban setting, because you can expect more debris in an urban landscape.
Justices Cretella and McDonald joined in Dissenting. They would have agreed with the Trial Court that the property owner did not owe a legal duty under these circumstances, because such conduct would not be a reasonably foreseeable consequence of leaving a broken cinder block in the back yard. The two dissenting Justices also held that public policy should limit the liability in these circumstances to prevent a jury from holding a landlord responsible for such attenuated circumstances.
The General Verdict Rule precluded review of the plaintiff’s claims. The plaintiff sued the Bridgeport Police Department for wrongful death, when their family member was shot and killed by a police officer in the process of fleeing a motor vehicle stop, where the officer concluded the driver had pulled a gun on him. The plaintiffs assertion of a wrongful death claim required them to show that the killing was not justified under one statutory provision, and the police officer raised as a special defense another section of the statute that would justify the killing. Since the jury interrogatories did not distinguish between the two bases for an authorized killing, the plaintiffs’ claim that the defendant’s special defense had not been satisfied could not be reviewed under the General Verdict Rule because it could not be known on which basis the jury concluded the killing was justified.
Finally, the Court rejected the claim that a mistrial should have been declared because of the defense attorney’s alleged misconduct. The Trial Court had issued a motion in limine that the decedent’s criminal background could not be delved into. However, during a cross-exam of the decedent’s girlfriend, she blurted out that she felt the decedent had concealed his past criminal record from her. The Trial Court precluded the attorney from delving further into that comment by the girlfriend. This did not rise to the level of misconduct, especially where plaintiff’s counsel did not seek a curative instruction or move for a mistrial, which suggested he did not deem the incident to be prejudicial.
Similarly, during closing argument, defense counsel stated to the jury that they had to ask themselves why the decedent ran, and must conclude it was because of his criminal background. That single reference merely mirrored the testimony of the girlfriend. It did not rise to the level of misconduct.
- AC35547- State v. Derks
- AC36258 - Tyson v. Commissioner of Correction
- AC34556 - State v. Dakers
- AC36410 - State v. Stiggle
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. Copyright 2015 Pullman & Comley, LLC. All Rights Reserved.Back to Top