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Advance Release Opinions - Review and Analysis

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Connecticut Supreme Court Opinions - Analysis and Impact

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 14

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Connecticut Supreme Court

The Supreme Court advance released an opinion about guardianship and special immigrant juvenile status. I don’t review the decision because I normally don’t review decisions in cases like this, but I do provide the syllabus from the opinion.

In re Henrry P. B.-P.

Sylbabus:

Pursuant to statute (§ 45a-608n [b]), ‘‘[a]t any time during the pendency of
a petition . . . to appoint a guardian or coguardian . . . a party may
file a petition requesting the Probate Court to make findings . . . to
be used in connection with a petition [for] special immigrant juvenile
status under [federal law].’’
H, a minor child, traveled from Honduras, where his life was threatened,
to the United States in order to seek refuge with his mother, the peti-
tioner, who lives in Connecticut. Five weeks before H’s eighteenth birth-
day, the petitioner filed petitions seeking, inter alia, the appointment of
a coguardian and juvenile status findings pursuant to § 45a-608n (b)
so that H could obtain special immigrant status and avoid potential
deportation. The Probate Court then scheduled a hearing on a date after
H’s eighteenth birthday and ordered the Department of Children and
Families to conduct a study related to the guardianship petition. Shortly
before H’s birthday, the petitioner filed an emergency petition for find-
ings under § 45a-608n (b), which the Probate Court denied. Thereafter,
the petitioner and H appealed to the Superior Court from certain of the
Probate Court’s rulings, including the denial of the emergency petition.
The Superior Court dismissed the appeal for lack of subject matter
jurisdiction on the ground that H was no longer a minor, and the peti-
tioner and H appealed to the Appellate Court. While that appeal was
pending, the Probate Court issued a final decision denying the petitions
seeking appointment of a coguardian and juvenile status findings pursu-
ant to § 45a-608n (b) on the ground that H was no longer a minor. The
petitioner and H then appealed from the Probate Court’s final decision
to the Superior Court, which dismissed that appeal. Thereafter, the
petitioner and H filed a second appeal with the Appellate Court, which
consolidated the two appeals. The Appellate Court affirmed the judg-
ments of the Superior Court dismissing the probate appeals, concluding
that the Probate Court lacked authority to appoint a coguardian and to
make juvenile status findings under § 45a-608n (b) because H had
reached the age of eighteen. On the granting of certification, the peti-
tioner and H appealed to this court.
Held that the Appellate Court
improperly affirmed the Superior Court’s judgments dismissing the pro-
bate appeals, this court having concluded that the Probate Court was
not divested of authority to make juvenile status findings under § 45a-
608n (b) after H reached the age of eighteen during the pendency of
the underlying proceeding: although the text of § 45a-608n (b) requires
juvenile status findings upon the granting of certain guardianship peti-
tions, there was no statutory language expressly conditioning the Pro-
bate Court’s authority to make such findings on the granting of such a
petition; moreover, adding such restrictive language would be inconsis-
tent with the maxim that this court does not read language into statutes
and with the statutory (§ 45a-605 [a]) directive favoring a liberal con-
struction of § 45a-608n, recognizing the authority to make findings under
such circumstances was consistent with the overarching purpose of
§ 45a-608n, which is to facilitate access to the state court findings neces-
sary for federal juvenile status petitions, which must be filed with federal
immigration authorities before a child’s twenty-first birthday, and the
legislative history of § 45a-608n counseled in favor of a broader reading
of the statute as to those persons eligible to obtain predicate state court
findings necessary to render available the federal immigration benefits
of juvenile status.

Advance Release Opinions – December 13

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Connecticut Supreme Court

The Supreme Court advance released an opinion about criminal law. Though I don’t ordinarily review criminal law decisions, it’s easy enough to post the syllabus from the opinion, which I think I’m going to do for criminal cases from now on.

State v. Adams – Syllabus from the opinion: “Convicted of the crimes of attempted larceny in the sixth degree and breach of the peace in the second degree in connection with an incident in which the defendant attempted to shoplift a bag of items from a store before leaving that bag behind and fleeing, the defendant appealed to the Appellate Court, which reversed his conviction as to attempted larceny because there was no evidence that the items in the bag had belonged to the store. The Appellate Court reasoned that the store surveillance video had not captured the defendant’s placing of specific, identifiable store merchandise into the bag, and, although one of the investigating police officers testified that the store’s employees had determined the total dollar amount of the items in the bag, there was no evidence to substantiate how those employees arrived at that exact value. On the granting of certification, the state appealed to this court.

“Held that the Appellate Court incorrectly concluded that the evidence was insufficient to support the defendant’s conviction of attempted larceny, the evidence having supported a reasonable inference that the items in the bag belonged to the store and that the defendant intended to deprive the store of those items permanently without its consent: the fact finder could have reasonably inferred, from the evidence that the employees determined the exact value of the items in the bag, that those items had price tags on them from the store, which, together with
the surveillance video showing the defendant’s furtive movements, his resistance when store employees had attempted to stop him, his abandonment of the bag, and his flight from the store, raised a reasonable inference that the bag contained items owned by the store; furthermore, the defendant’s claim that the evidence of his flight could not be used to establish that a crime was committed was unavailing because, although evidence of flight, standing alone, may be ambiguous, it was for the fact finder to resolve that ambiguity under all of the relevant facts and circumstances.”

Advance Release Opinions – December 11

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Connecticut Supreme Court

The Supreme Court advance released an opinion about insurance coverage for false imprisonment, which I review below. The Court did not release any other opinions.

Nationwide Mut. Ins. Co. v. Pasiak – Pasiak had a home office for his construction company. He hired Socci to do office work at the home office. During Socci’s second week, a masked intruder entered the office and demanded that Socci open the safe. Socci didn’t know there was a safe and certainly didn’t have the combination. The intruder tied her up and threatened to kill her family if she didn’t give him the combination. The intruder was still there when Pasiak returned and the two had a struggle. Pasiak pulled off the intruder’s mask and it turned out that the intruder was Pasiak’s lifelong friend. Pasiak wouldn’t let Socci leave or call the police. He didn’t call the police either. A little later, Pasiak let his friend leave. After that, Pasiak drove Socci to Greenwich to discuss the incident with a mutual friend, who said they should call the police. Pasiak let Socci go, but did not call the police until later that day after Socci and her husband went to Pasiak’s house.

Pasiak’s friend was arrested, prosecuted and convicted. Socci prosecuted a personal injury action for false imprisonment against Pasiak and was awarded compensatory and punitive damages. Pasiak sought indemnification under a personal umbrella policy. The insurer brought a declaratory judgment action.

The umbrella policy covered “personal injury”, which was broad enough to cover Socci’s injuries, but the policy had a business pursuits exclusion. The exclusion precluded coverage for occurrences “arising out of” Pasiak’s “business pursuits.”

The trial court concluded that the exclusion did not apply. Though Socci testified that Pasiak said he didn’t want to call the police because he was trying to protect his friend and because calling the police would be bad for business, there was a lack of proof of any negative impact on the business from calling the police. So, in the trial court’s view, Pasiak was really just protecting his friend, which was not a business pursuit.

The Appellate Court reversed, finding that the exclusion applied essentially because everything that happened while Socci was at work necessarily “arose out of” Pasiak’s business pursuits – if she wasn’t at work doing her job, she would not have been victimized by Pasiak or his friend. Pasiak’s subjective motivations for his conduct were irrelevant.

The Supreme Court concluded that the trial court was too restrictive, and the Appellate Court too broad, about the scope of the exclusion. Specifically, Pasiak’s apparent desire to help his friend did not necessarily trump his concern about the impact on his business. And the mere fact that Socci was at work did not necessarily mean that the false imprisonment arose out of that work. In the end, the Supreme Court found the record insufficient to determine whether the exclusion applied as a matter of law and reversed and remanded to the trial court for further proceedings.

The Supreme Court also rejected all of the insurer’s alternate grounds for affirmance: (i) worker’s compensation exclusion did not apply because (a) Pasiak was sued in his personal capacity, not as Socci’s employer, and (b) there was no proof that Socci’s injuries would have been compensable under the worker’s compensation act in any event; (ii) physical or mental abuse exclusion did not apply because “abuse” is something different from false imprisonment; and (iii) public policy did not preclude coverage for punitive damages because those punitive damages arose from the intentional tort of false imprisonment, which the policy covers.

Advance Release Opinions – December 1

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The Supreme Court advance released an opinion in a criminal case that I review below. The Appellate Court advance released opinions about civil procedure, family law, indemnification, and vexatious litigation that I review below. The Appellate Court also released three opinions in criminal matters which I do not review.

Connecticut Supreme Court

Criminal Law

State v. Damato-Kushel – I don’t normally review opinions in criminal cases but this one is a little different. The defendant was accused of sexual misconduct. Her alleged victim brought this writ of error, claiming that he, either personally or through his attorney, had a constitutional right under the victim’s rights amendment to be present during plea negotiations and other in-chambers pretrial disposition conferences between the prosecutor, the court and defense counsel. Supreme Court dismissed the writ, concluding that the alleged victim has no right to attend because the defendant herself has no right to attend. A concurring opinion notes that even though the defendant has no right to attend, her attorney does and the majority did not explain why the same right is not extended to the alleged victim’s counsel. The reason is that the language of the victim’s rights amendment does not allow it.

Connecticut Appellate Court

Civil Procedure

Law Offices of Frank N. Peluso, P.C. v. Cotrone – This case confirms, if we didn’t already know it, that failure to follow proper procedure can really ruin your day. Law firm sued former client for unpaid legal fees. Former client counterclaimed. Law firm filed a withdrawal of its action. Two days later, law firm filed what it thought was a withdrawal of its withdrawal. Trial court rejected former client’s argument that you can’t withdraw a withdrawal. Case went to trial. Law firm won on its claim and the counterclaim. Appellate Court reversed the judgment on law firm’s claim because you can’t withdraw a withdrawal. You have to move to restore the case to the docket within four months of the withdrawal. Painful lesson.

Family Law

Kent v. DiPaola –  Trial court did not include the present value of Spouse 2’s pensions (which were in pay status) in the division of assets because it used the income stream from the pensions to eliminate what would have been Spouse 1’s child support obligation. Trial court divided the martial assets two-thirds / one-third in favor of Spouse 2. Appellate Court affirmed, concluding that trial court did not abuse its discretion in excluding the pensions from the marital asserts because the income offset Spouse 1’s support obligation. Nor was there any abuse of discretion in the property division.

Indemnification

O’Brien v. New Haven – Plaintiff was the city’s tax collector. A third party sued plaintiff for misconduct. Plaintiff asked city to defend him. City declined but said that it would indemnify plaintiff under CGS § 7-101a(b) for financial loss, including attorney’s fees, if plaintiff won the case and was acting in the discharge of his duties. Plaintiff hired his own lawyer and won. City refused to pay his attorney’s fees. Plaintiff filed a notice of intention to bring an action for indemnification with the city clerk and commenced the action soon after. City claimed that notice was late. Trial court found that notice was proper and timely; plaintiff was entitled to his attorney’s fees in defending against the misconduct claims; but plaintiff was not entitled to his attorney’s fees in prosecuting the indemnification action. Plaintiff and city appealed. After some extensive statutory analysis, Appellate Court agreed that the notice was proper and timely. Appellate Court also agreed that plaintiff was not entitled to his attorney’s fees in the indemnification action because there was no statute or contract authorizing it.

Vexatious Litigation

Rockwell v. Rockwell – In the underlying action, wife sued husband on an investment agreement and lost. Husband then sued wife and wife’s attorney for vexatious litigation. Wife was dismissed for lack of personal jurisdiction. Husband claimed a jury. After bifurcating the issue since it involved a question of law, the trial court found that there was probable cause to commence the underlying action and entered judgment for attorney. Appellate Court affirmed, concluding that trial court did not abuse discretion in bifurcating the probable cause issue; husband did not have a constitutional right to have the jury decide that issue; and trial court properly determined there was probable cause for the underlying action.

 

Advance Release Opinions – November 14

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Connecticut Supreme Court

The Supreme Court advance released a single opinion, which deals with breach of contract.

CCT Communications, Inc. v. Zone Telecom, Inc. – This opinion results from something that I don’t recall ever happening before (though I know it must have): The Supreme Court granted reargument and effectively reversed itself. Plaintiff’s claim and defendant’s counterclaim each asserted that the other breached the contract. The trial court found that it was plaintiff who breached. But the trial court’s decision was unclear as to whether plaintiff breached by filing for bankruptcy, which seemed to be the trial court’s conclusion, or that plaintiff breached by providing inadequate service, which defendant cited as an alternate ground for affirmance. On the first go ’round, after oral argument the Supreme Court ordered the trial court to articulate. After the articulation, the Supreme Court affirmed, its original opinion accepting the alternate ground for affirmance. On reargument, the Supreme Court reversed the trial court, finding that the record did not support the alternative ground for affirmance and that plaintiff’s bankruptcy filing was not a breach.

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 31

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Connecticut Supreme Court

Res Judicata

Wellswood Columbia, LLC v. Hebron – In the first action, plaintiff sued for a temporary and permanent injunction barring Hebron from closing a road that was the only access to plaintiff’s property. The trial court denied the injunction. The Supreme Court reversed and remanded with instruction to grant the injunction. Plaintiff then commenced the second action seeking damages for temporary taking, temporary nuisance, and tortious interference with business expectancies. Trial court granted defendant summary judgment in the second action on res judicata grounds. Supreme Court affirmed, finding that a temporary taking claim accrues before the temporary taking ends; the road closure did not fall within the continuing or recurrent wrong exception to res judicata; and plaintiff could have pursued the tortious interference claim in the first action because the road closure caused an immediate and cognizable loss.

Advance Release Opinions – September 19

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Connecticut Supreme Court

The Supreme Court advance released two decisions dealing with the firefighter’s rule in personal injury cases.

Sepega v. DeLaura – The firefighter’s rule precludes a police officer’s nonpremises liability negligence claim for injuries sustained in breaking down a door to reach the defendant who was threatening to harm himself.

Lund v. Milford Hospital – The firefighter’s rule does not preclude a state trooper’s claim for injuries sustained in subduing a patient committed to defendant’s psychiatric care because the substitute complaint clarified that the alleged negligence was not “intimately connected with the very occasion for which the trooper was on the property.”