Advance Release Opinions – Appellate Court – August 9

Reviews of Appellate Court opinions about custody and visitation, governmental immunity, and personal injury.

Custody and Visitation

In re Joheli V. – Trial court terminated father’s parental rights because he failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of Joheli, he could assume a responsible position in her life. Father appealed, claiming that trial court based its decision solely upon father’s incarceration and pending trial for allegedly sexually assaulting Joheli. Appellate Court affirmed, finding that father’s incarceration was one factor (and properly so), but not the sole factor, in the trial court’s decision.

Governmental Immunity

Drabik v. Thomas – AT&T notified the FCC that it was thinking about putting a cell tower on Drabik’s property. FCC notified the Mohegan Tribe of Indians of Connecticut. The tribe objected because the tower would “impact the view shed” for “substantial stone groupings” that were of “traditional religious and cultural significance to the tribe.” Drabik asked the tribe for more information about the stone groupings but the tribe did not respond. So, Drabik filed a petition for a bill of discovery, a device to obtain evidence for use in an action other than the one in which the discovery is sought. Trial court granted the tribe’s motion to dismiss Drabik’s petition on the ground of tribal sovereign immunity. Appellate Court affirmed, finding that tribal sovereign immunity applied to a prelitigation bill of discovery just as it did to an actual litigation, and that the immunity extended to the individual members of the tribe from whom Drabik sought the discovery because they were acting within the scope of their tribal authority.

Palosz v. Greenwich – Board of Education not entitled to sovereign immunity for claims alleging failure to comply with antibullying policy because sovereign immunity protects the state alone, and Board acts for the municipality, not the state, in enforcing antibullying policy. More specifically, a board of education acts for the state when it performs duties delegated to it by the state, and for the municipality when it performs duties delegated to it by the municipality. Though the state delegated creation of an anti-bullying policy to the boards of education, it delegated enforcement to the municipalities. Greenwich delegated its enforcement duties to Board.

Personal Injury

Farmer-Lanctot v. Shand – Farmer-Lanctot jumped out of the way of Shand’s car and was injured. Shand denied he was negligent and asserted contributory negligence. Trial court denied Farmer-Lanctot’s request for certain charges. General verdict for Shand. Appellate Court affirmed, finding that (1) under the general verdict rule, the verdict stands if any ground for the verdict is proper; (2) Shand’s denial of negligence was possibly a ground for the verdict; (3) Farmer-Lanctot’s only attack on that ground was her claim that the trial court should have charged the jury on the driver’s duty to yield to pedestrians when making a right turn; (4) trial court properly declined to give that charge because the facts did not support it; and (5) since the trial court properly declined to give the charge, the general verdict rule required Appellate Court to presume that the jury found Shand not negligent, which was sufficient to affirm.