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Advance Release Opinions - Review and Analysis

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Analysis and Impact of Connecticut Appellate Level Opinions Involving Personal Injury Issues

Advance Release Opinions – January 11 – Part Two

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The Connecticut Appellate Court advance released an opinion about personal injury law that I review below. The Court also released two opinions about criminal law that I do not review.

FYI, in prior posts, I said “which I review below.” I started to think it should be “that I review below.” Strunk and White seems to confirm it, so I changed it.

This is Part Two of the post for January 11 advance releases. Part One is the immediately preceding post that deals with a Supreme Court opinion released the same day.

Personal Injury

Pettiford v. State – State van hit UPS driver when he was crossing the street to deliver a package. UPS driver claimed that State owed him a heightened duty because he was in or very near an unmarked crosswalk. Trial court found, and Appellate Court agreed, that by statute an unmarked crosswalk exists only where a sidewalk meets an intersection. Since there was no sidewalk, there was no unmarked crosswalk. Appellate Court also found that, even if there was an unmarked crosswalk, the trial court made no finding that the UPS driver was in or very near it when he got hit and other findings suggested he wasn’t. Appellate Court reversed, but only because the trial court had dismissed the action when it should have entered judgment for State.

Advance Release Opinions – January 5

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The Connecticut Appellate Court advance released opinions about administrative law, civil procedure and personal injury, which I review below. The Court also advance released opinions about criminal law and habeas corpus, which I do not review.

Administrative Law

Tirado v. Torrington – In 2010, Torrington added Tirado’s car to its 2004 grand list. Tirado claimed that was improper and sued for damages. Trial court dismissed for lack of subject matter jurisdiction because plaintiff failed to exhaust administrative remedies under CGS § 12-117a and failed to file her claim within one year of the assessment as required by CGS § 12-119. Appellate Court rejected the § 12-119 basis because that section applies when a town assesses property it doesn’t have the authority to assess, as in the case where the taxpayer doesn’t live in the taxing town. Since Tirado conceded that she was living in Torrington in 2004, she effectively conceded that Torrington had the authority to assess. But, as to the § 12-117a basis, Appellate Court affirmed because that section requires a plaintiff complaining about an assessment to exhaust administrative remedies with the board of assessment appeals before starting an action in Superior Court and Tirado didn’t do that.

Recycling, Inc. v. Commissioner of Energy & Environmental Protection – Commissioner denied application for a new permit and revoked an existing permit. Superior Court dismissed Recycling’s appeal. Appellate Court rejected Recycling’s claims that (i) Commissioner’s decision was arbitrary and capricious; (ii) Commissioner applied the wrong standard of review; (iii) improperly excluded relevant evidence; and (iv) “[C]ommissioner improperly engaged in ex parte communications with the town of Milford and then publicly issued an official statement which harshly criticized Plaintiff and in effect directed DEEP to rule against plaintiff.”

Civil Procedure

Estela v. Bristol Hospital, Inc. – Estela is a doctor who claimed that the hospital had improperly restricted his privileges and stole his patients. Trial court dismissed Estela’s first action for failure to comply with deadlines set in two court orders. Estela started a second action relying on the accidental failure of suit statute, CGS § 52-592(a). Hospital moved for summary judgment on statute of limitations grounds but not explicitly challenging the applicability of § 52-592(a). Then, before Estela objected to the summary judgment motion, Hospital filed a motion to bifurcate Estela’s claim that his action was not time-barred from his underlying claims. Trial court granted bifurcation and, after an evidentiary hearing on the timeliness issue, found that § 52-592(a) did not apply because the first action was dismissed for serious disciplinary reasons, not because of mistake, inadvertence or excusable neglect. Appellate Court rejected Estela’s claim that Hospital waived objection to accidental failure of suit by failing to raise it before the motion to bifurcate, noting that Supreme Court precedent confirmed that accidental failure of suit may be addressed through a motion to bifurcate. Appellate Court also rejected Estela’s claim that trial court applied the wrong standard – “mistake, accident or reasonable cause” instead of “mistake, inadvertence or excusable neglect” – in determining whether the first action was an accidental failure. Whatever the trial court said about the standard at the evidentiary hearing, it applied the proper standard in its memorandum of decision.

Personal Injury

Boykin v. State – Plaintiff, hit by a car while in crosswalk, claimed that the State was negligent in failing to install or repair a crosswalk button or otherwise provide a safe crosswalk. Trial court dismissed the action for lack of subject matter jurisdiction, finding that the notice of claim was patently defective and so did not invoke the waiver of sovereign immunity in CGS § 13a-144. Appellate Court reversed, concluding that “plaintiff’s notice was not patently defective, as it ‘both informed the defendant of the plaintiff’s intent to file a claim and furnished the defendant with a guide as to how to conduct further inquiries to protect its interests.'”

Advance Release Opinions – December 21

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The Connecticut Appellate Court advance released opinions about arbitration and underinsured motorist benefits, which I review below. The Court also advance released opinions about criminal law and habeas corpus matters, which I do not review.

Arbitration

Henry v. Imbruce – The Appellate Court affirmed trial court’s decision granting plaintiffs’ motion to confirm arbitration award and denying defendants’ motion to vacate the award. In doing so, the Appellate Court rejected defendants’ claims that arbitrator (i) had a nontrivial conflict of interest because she had arbitrated the divorce of an attorney who had previously represented some of the defendants in an unrelated matter; (ii) denied defendants fundamental fairness in (a) declining to order plaintiff to produce certain information and (b) permitting plaintiff to add new claims for which discovery was not permitted; and (iii) exceeded her authority in (a) rendering an award against one of the defendants individually even though he didn’t sign an arbitration agreement and (b) apportioning costs and awarding attorney’s fees. I note that the Appellate Court described defendants’ argument (iii)(a) as “close to frivolous” because the individual defendant repeatedly had identified himself as a party to the arbitration and thus assumed the obligation to arbitrate.

Stack v. Hartford Distributors, Inc. – Trial court granted employee’s application to proceed with arbitration under the parties’ employment agreement. Employer appealed, claiming that the arbitration clause did not apply because a corporate merger rendered the employment agreement void and a different agreement, corporate bylaws and our corporate governance statutes gave employer a basis for firing employee that was independent of the employment agreement. Appellate Court affirmed because employee claimed that employer breached employment agreement, the agreement required arbitration of claims of breach, and under our law if the employer says the whole employment agreement is void, not just the arbitration clause, the arbitrator decides validity.

Underinsured Motorist Benefits

Doyle v. Universal Underwriters Ins. Co. – Plaintiff went to high/low confidential arbitration with tortfeasor, with a high of tortfeasor’s $100,000 policy limit. Arbitrator found the damages were some $106,000. Torfeasor’s carrier paid its policy limit. Plaintiff commenced action against his own carrier for underinsured motorist benefits but apparently wanted to relitigate damages. Trial court granted carrier’s motion for summary judgment on collateral estoppel grounds but awarded plaintiff the $6,000 difference between the arbitrator’s damages and the torteasor’s policy limit. Plaintiff appealed. Appellate Court affirmed.

Advance Release Opinions – December 20

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Connecticut Supreme Court

The Supreme Court advance released an opinion in a personal injury matter about a police duty to search those in civil mental health custody.

Hull v. Newtown – Lupienski went to the police station complaining of hallucinations and shortness of breath. Without searching him, a police officer took him into custody and had EMS take him to the hospital, where he was admitted. About 38 hours later, Lupienski shot Hull, a nurse manager at the hospital. Hull brought suit, alleging that the police had a duty to search Lupienski before he got to the hospital. The trial court granted the Town’s summary judgment motion and Hull appealed. The Supreme Court noted that “the police would have been required to search Lupienski only if the [department’s] arrest policy in conjunction with § 17a-503 (a) [civil mental health custody] , or the [department’s] transportation policy, imposed a ministerial duty to do so.” The Supreme Court affirmed, finding that the search requirement of the arrest and transportation policies applied only to those in “custody” in the criminal context, not the civil mental health context.

Advance Release Opinions – December 18

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Connecticut Supreme Court

The Supreme Court advance released an opinion about personal injury law involving an exception to municipal immunity, which I review below.

Williams v. Housing Authority – Tough case all the way around. An adult and her three young children died in a fire in a Bridgeport public housing complex. Administratrix sued Fire Department for failing to conduct a statutory fire safety inspection of the apartment. Under the municipal liability statutes, municipalities are immune from liability for a failed or negligent inspection unless the “failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances ….” The trial court granted the Fire Department’s motion for summary judgment, finding that the exception did not apply because recklessness required knowledge of a dangerous condition and there was no evidence that the Fire Department had any such knowledge. The Appellate Court reversed, finding that recklessness required only recognition of a “possible impact” on health or safety from a failure to inspect. The Supreme Court also reversed because neither the trial court nor the Appellate Court got the recklessness standard right. It doesn’t require as much as knowledge of a dangerous condition or as little as recognition of a possible impact. Rather, reckless disregard “is more egregious than mere negligence and requires that health and safety inspectors disregard a substantial risk of harm.” Whether the inspectors did that requires consideration of “all the relevant circumstances” – which really makes the recklessness issue always a fact question for the jury to decide.

After reaching these conclusions, the majority spends a lot of time trying to refute accusations it claims the dissent makes. I’m not so sure it succeeds. For example, the majority “categorically reject[ed] the dissent’s suggestion that we have embraced a per se theory of recklessness with respect to the failure to perform mandated health or safety inspections. Rather, we have identified numerous factors that the trier of fact may consider in assessing whether any particular failure to carry out a statutorily mandated inspection demonstrates a reckless disregard for health or safety under all the relevant circumstances.” That may be true in theory, but it’s hard to imagine how a failure to conduct a health or safety inspection already deemed to be important enough to warrant statutory mandate could be anything other than reckless under the majority’s standard.

 

Advance Release Opinions – December 8

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Connecticut Appellate Court

The Appellate Court advance released opinions about administrative law, employment law, personal injury (three opinions) and trusts and estates, which I review below. The Appellate Court also released opinions about criminal law (three opinions) and habeas corpus, which I do not review.

Administrative Law

Lawrence v. Dept of Energy & Environmental – Superior Court dismissed the appeal because plaintiff was not classically or statutorily aggrieved by commissioner’s decision granting an application to construct a residential dock and pier, except as to his claim for visual degradation but the record supported the commissioner’s decision in that regard. Appellate Court affirmed by adopting Superior Court’s decision.

Employment Law

Horvath v. Hartford – Trial court granted city summary judgment on former assistant police chief’s claim of constructive discharge. Appellate Court affirmed, finding that the alleged adverse conditions even taken collectively “were not so objectively intolerable that a reasonable person would have felt compelled to resign.”

Personal Injury

Cuozzo v. Orange – Trial court granted municipal defendants summary judgment because there was no issue of fact that the pothole that allegedly caused the injuries was not on their property. Appellate Court affirmed.

Cusano v. Lajoie – Jury awarded medical expenses but nothing for non-economic damages. Trial court granted motion for additur because it was inconsistent to award substantial medical expenses but deny pain and suffering. Appellate Court reversed because (i) the trial court failed to “state the specific facts relied upon … to justify its decision to award the extraordinary relief of additur”; and (ii) there was “conflicting evidence and credibility issues concerning the extent, if any, of the plaintiff’s pain and suffering.”

Tara S v. Charles J – Father was prosecuted sexually abusing his daughter, who was four years old at the time. Daughter, now 36, started this action against father to recover for personal injuries resulting from the sexual abuse. Father moved to dismiss, arguing that CGS § 52-577d, which extends the limitations period for claims by those sexually abused as minors to 30 years after majority, was unconstitutional as applied to him because (i) legislative history shows extension is constitutional only for repressed memories and daughter did not have any; (ii) violated his rights to a speedy trial and confrontation, and his protection against double jeopardy (he argued this civil action was quasi-criminal); and (iii) and statute is unconstitutionally overbroad and unconstitutionally infringes on a property interest. Appellate Court affirmed, finding (i) statute clearly and unambiguously not limited to repressed memories so no basis for considering legislative history; (ii) the action is purely civil, not quasi-criminal; and (iii) statute isn’t overbroad because it doesn’t prohibit any constitutionally protected conduct and doesn’t impact any property right.

Trusts and Estates

Geci v. Boor – There was no confidential relationship between father and daughter that would have shifted burden of proof to daughter on issue of ownership of joint bank accounts; there were no facts suggesting that father intended anything other than leaving the joint accounts to daughter alone; trial court was free to conclude that daughter did not conceal survivorship aspect of accounts from father or his attorney; and daughter did not undervalue assets such that she should be removed as executrix.

 

Advance Release Opinions – November 3

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Connecticut Appellate Court

The Appellate Court advance released opinions in the areas of breach of contract, declaratory judgment, employment, personal injury, and zoning.

Breach of Contract

Frauenglass and Associates, LLC v. Enagbare – Law firm sued former dissolution client for unpaid fees and won. Client appealed and Appellate Court affirmed. Law firm then moved for postjudgment interest and attorney’s fees for prosecuting the collection action (fee agreement had attorney’s fees provision). Former client’s objection related to the law firm’s fees in the dissolution proceeding, not the collection action. Trial court granted law firm’s motion because the dissolution fee issue had already been finally resolved. Appellate Court affirmed.

Declaratory Judgment

21st Century North American Ins. Co. v. Perez – Insurer had properly terminated defendants’ car insurance for not fully paying a premium installment (before defendants had a fatal crash). Though defendants had made a partial payment, the doctrine of substantial performance did not save them because payment of premiums is an essential and material condition to car insurance and there can be no substantial performance when the performance owed is the payment of money and time is of the essence.

Employment

Samakaab v. Dept of Social Services – “[P]laintiff alleged that he was denied a promotion because of his age, sex, national origin, and his prior opposition to unlawful employment practices”. Trial court granted defendant summary judgment because plaintiff’s self-serving affidavit and deposition testimony did not demonstrate a fact issue. Affirmed.

Personal Injury

Burke v. Mesniaeff – Husband was giving a tour of his historic second home to three people when wife arrived in an agitated state. Husband forcibly escorted wife out of the house and down the driveway. Wife alleged assault and battery. Husband asserted justification because he acted in defense of others – the tour guests. Defense verdict. Appellate Court affirmed, finding that the trial court properly instructed the jury on justification. Judge Bishop dissented because in his view defendant’s evidence at trial and the jury instructions were tainted by the improper notion that wife could have been a trespasser in a house her husband owned (majority found this inconsequential because jury did not find wife was a trespasser) and the evidence did not support the defense of others justification.

Zoning

Griswold v. Computaro – Defendants filed motions to cite in new defendants and to open and modify an 18 year old stipulated judgment for the operation of an asphalt manufacturing facility. Those motions were assigned to the November 23 short calendar. On November 9, the town, the defendants, and the yet to be cited-in defendants agreed to modify the stipulated judgment. On November 12, the town, the defendants, and the yet to be cited-in defendants filed a joint motion to open and modify the stipulated judgment, together with a caseflow request to have all of the motions heard on the November 16 short calendar. The trial court granted the caseflow request and opened and modified the judgment on November 16. The proposed intervenors showed up on November 23 to file their motion to intervene and be heard on the motion to open and modify only to learn that the trial court had already done it without them on November 16. The trial court denied intervention. The Appellate Court reversed, concluding that (i) it was a violation of our rules of practice to proceed on November 16 when the matters had been published to the November 23 short calendar; (ii) because of (i), the intervenors were denied their statutory right to intervene; and (iii) because of (ii), the hearing on the stipulated settlement failed to conform to CGS § 8-8(n).

Advance Release Opinions – November 2

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Connecticut Supreme Court

Products Liability

Bagley v. Adel Wiggins Group – In this mesothelioma case, defendant was entitled to a judgment notwithstanding the verdict because plaintiff failed to present essential expert testimony to prove that “respirable asbestos fibers in a quantity sufficient to cause mesothelioma were released from FM-37 when it was used in the manner that it was in the Sikorsky blade shop during the decedent’s tenure there. Proof of this fact was necessary to prove both that (1) FM-37 was dangerous, and (2) FM-37’s dangerous condition caused the decedent to develop mesothelioma.”

Advance Release Opinions – October 13

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Connecticut Appellate Court

The Appellate Court issued opinions in the areas of adverse possession (but not really), foreclosure, personal injury, and tax appeals.

Adverse Possession (but not really)

Zhang v. 56 Locust Road, LLC – Trial court quieted title to property plaintiffs obtained by adverse possession but gave the defendant an easement by necessity over a portion. Appellate Court affirmed saying, “The trial court fully and accurately addressed the issues relevant to the parties’ appeals and, in its memorandum of decision, set forth a proper statement of both the facts and the applicable law. Any further discussion by this court would serve no useful purpose.”

Foreclosure

Bank of New York Mellon v. Mauro – Hohum. Even if borrowers’ affidavits created a fact issue as to their counterclaims, they did not create a fact issue as to any element of a prima facie foreclosure case or any special defense so as to preclude summary judgment as to liability on plaintiff’s claim in chief. And, the counterclaims were properly dismissed in any event because they failed the transaction test requiring that they be related to the making, validity or enforcement of the note.

Personal Injury

Smith v. Redding – Plaintiff was injured when he fell from a retaining wall built without a fence on top of it. He claimed that the wall was an absolute public nuisance. On appeal, he claimed that the trial court erred in failing to admit evidence under an exception to the rule against evidence subsequent remedial measures if such measures were not voluntary. Appellate Court declined to consider this claim because the record did not allow the Court to evaluate whether the ruling harmed plaintiff. Plaintiff also claimed that the trial court did not properly instruct the jury on the town’s zoning regulations. Appellate Court concluded plaintiff had failed to preserve this claim for appeal. Affirmed.

Tax Appeals

Faile v. Stratford – Two separate property owners appealed tax assessments on three properties. Same law firm represented both property owners. Pretrial order directed that the person with ultimate authority to settle must attend and bring the evidence intended to be submitted at trial. Property Owner One and Property Owner Two had agreed to a hardline settlement position not to exceed a certain fair market assessment. Since Property Owner One was unexpectedly hospitalized at time of pretrial, attorney from law firm and Property Owner Two attended. Attorney had Property Owner One’s authority to settle for the hardline settlement number. Attorney also had electronic copies of the evidence on his laptop, which was with him in the courtroom. Trial court entered nonsuits as to all three matters, finding noncompliance with the pretrial because (i) no one present had ultimate settlement authority because Property Owner Two was deferring to Property Owner One and attorney had authority only up the the hardline number; and (ii) evidence must be in hard copy, not electronic copies on a laptop. Appellate Court reversed as to Property Owner Two because he was present and nothing precluded him from taking a hardline settlement position, and nothing in the pretrial order required the evidence to be in hard copy. Appellate Court also reversed as to Property Owner One but for a different reason. Upon repeated questioning by the trial court, attorney eventually “conceded” that he did not have Property Owner One’s “ultimate authority” to settle because he could not go above the hardline number. Appellate Court concluded that it could not find ultimate authority in the face of that concession. But, the nonsuit was an abuse of discretion because Property Owner One was in the hospital and could not attend.

Advance Release Opinions – October 6

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Connecticut Appellate Court

The Appellate Court advance released opinions about foreclosure, matrimonial, personal injury, professional negligence, receivership and trusts and estates matters.

Foreclosure

JPMorgan Chase Bank, N.A. v. Essaghof – Borrower originally had a negative amortization adjustable rate note and claimed that lender fraudulently or with unclean hands induced a modification to a fixed rate by misrepresenting that interest rates were rising when they were actually falling. The trial court rejected borrower’s claim, concluding that interest rates were in fact rising leading into the modification even if they fell after the modification. The trial court also ordered borrowers to reimburse lender for real estate taxes and hazard insurance lender paid during pendency of appeal and until the conclusion of litigation. Appellate Court affirmed.

Matrimonial

Puff v. Puff – Parties resolved a post-dissolution motion to modify alimony with a stipulated agreement that the court approved as an order. Appellate Court rejected plaintiff’s claims that (i) there was no “agreement” that could be accepted as an order – there was only an agreement to agree; and (ii) the trial court did not conduct an adequate canvass before accepting the agreement as an order. But the Appellate Court reversed the trial court’s contempt order for plaintiff’s failure to comply with a term of the agreement/order, finding it unwarranted since it was undisputed that plaintiff had made “at least some effort” to comply.

Personal Injury

McFarline v. Mickens – Trial court granted defendant summary judgment, finding that municipality had not shifted responsibility for sidewalk maintenance to adjoining landowners so, absent proof of a positive act by landowner that contributed to plaintiff’s fall on allegedly defective sidewalk, landowner did not owe plaintiff any duty.  Appellate Court affirmed.

Professional Negligence – What it is Not

Pellet v. Keller Williams Realty Corporation – Homeowners sued realtor on a host of contract and tort claims about realtor’s conduct in selling house. Trial court equated all eight counts of the complaint with professional negligence and directed verdict for realtor because homeowners did not present expert testimony as to the professional standard of care. Trial court also granted realtor’s motion for a special finding that homeowners brought the action in bad faith and without merit, which entitled realtor to its attorney’s fees. Appellate Court reversed the judgment and special finding, concluding that (i) rolling an allegation about what realtor knew or should have known about house’s market value into all eight counts did not make all eight counts professional negligence claims; (ii) the jury was actually provided with necessary expert testimony as to the standard of care even if it did not come from homeowners’ witness and did not expressly opine a breach of the standard; and (iii) special finding could not stand in the face of the other rulings.

Receivership

Seaport Capital Partners, LLC v. Speer – Receiver appointed in a nine-property commercial foreclosure action brought writ of error challenging trial court’s denial of approval of receiver’s reports and order of payment. Appellate Court rejected receiver’s claim that trial court lacked subject matter jurisdiction to appoint a receiver because lender never fully funded the loans. Not surprisingly, Appellate Court also rejected receiver’s claim that the order of payment was improper because the underlying borrower had collected certain rents and so receiver did not have the money to comply with the order of payment.

Trusts and Estates

Eder’s Appeal from Probate – This case is really only interesting because its name seems archaic. Appellate Court noted that the case had been captioned Eder v. Appeal from Probate in the Superior Court and that on appeal the parties had called it Eder v. Eder. Appellate Court changed it to Eder’s Appeal from Probate to “conform[ ] to the convention our appellate courts use for appeals from probate.” In any event, the gist of the appeal was that father had set up a trust that upon termination was to be distributed equally to “each child of the [father] then living.” Father and biological son had a falling out. Father later adopted the two adult sons of a woman with whom he had had a long term relationship. Biological son claimed it was a sham adoption undertaken solely to reduce his share of the trust corpus. Probate Court concluded adopted sons were entitled to share equally with biological son. Same result in Superior Court. Appellate Court affirmed.