1995 Connecticut Tort Law Review

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 70 Pg. 161
Connecticut Bar Journal
Volume 70.

70 CBJ 161. 1995 Connecticut Tort Law Review


1995 Connecticut Tort Law Review


With the approval of Public Act 95-111, the legislature established coherent, uniform procedures for adding parties for apportionment of negligence - a much needed response to the lack of procedures in Tort Reform 11 that had led to a range of conflicting Superior Court precedents regarding those procedures. The legislature has also granted litigants a right to a jury trial in a claim under the Connecticut Unfair Trade Practices Act.

During 1995, our Supreme Court addressed causation in negligent security claims, and the liability of a hospital to a patient for fear of AIDS caused by exposure to the blood of another patient It grappled with complex factual and legal issues involving the government contractor defense as applied to a jet fighter furnished by the United States to a foreign nation. The court also granted certification to several 1995 Appellate Court cases, including one involving the application of the recreational land use immunity statute.

With one significant exception, this article is organized along the same lines as the 1993 and 1994 reviews. Almost all 1995 tort decisions of the Supreme and Appellate Court are again covered, along with a few non-tort cases of likely interest to tort lawyers. I have dropped coverage of employment-related torts not involving personal injuries. Such cases are more thoroughly covered in articles on developments in employment law. Of course, this review continues to cover workers' compensation and tort liability for injuries arising in the course of employment.


A. Premises liability

1. Negligent security claims

In Stewart v. Federated Dept. Stores, Inc., (fn1) the Supreme Court addressed the liability of the owner of a parking garage for the murder of a patron in the facility. The decision contains a lengthy discussion of principles of causation, including the relationship between cause-in-fact and proximate cause. The court


explained: -[L]egal cause can be portrayed pictorially as a Venn diagram, with the circle representing cause in fact completely subsuming the smaller circle representing proximate cause, which specifically focuses on that which we define as legal causation." (fn2) In most instances, and when a party does not specifically request an independent instruction on cause-in-fact, an instruction on proximate cause alone may be sufficient to guide the jury on the meaning of legal causation. (fn3)

Stewart also addressed issues of superseding cause, and the application of the standard set forth in Section 442B of the Restatement (Second) of Torts (fn4) In Doe v. Manheiner, (fn5) the Supreme Court had said that the application of Section 442B requires a fairly strong degree of certainty that a criminal or intentional intervening act is within the scope of the risk. (fn6) In Stewalt, the court disavowed this language and said that it had never meant to imply a higher standard of proof than the usual fair preponderance of the evidence. (fn7)

2. Negligence per se, as contrasted with strict liability, under the lead paint statute

In Gore v. People's Savings Bank (fn8), the Supreme Court held that a violation of the now-repealed lead paint statute Section


47a-8 of the General Statutes (fn9) constituted negligence per se, (fn10) but did not give rise to strict liability for which no excuses are permitted. (fn11) The Supreme Court rejected the Appellate Court analysis that a statute should be construed as providing for no excuses unless the statute itself expressly provides for such excuses. (fn12) The court indicated that the legislature did not intend by Section 47a-8 to impose liability on landlords without regard to the common law requirement of actual or constructive notice to the landlord. (fn13)

3. Falls

At least since Kraus v. Newton, (fn14) it has been quite difficult for plaintiffs to recover for falls during winter storms. Kraus had held that absent unusual circumstances, a property owner, in fulfilling the duty owed upon his property to exercise reasonable diligence in removing dangerous accumulations of ice and snow, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps. (fn15) Kraus had involved residential property at which a meter reader fell during the monthly reading. In Sinert v. Olympia & York


Development Co., (fn16) the Appellate Court held that the defendants' status as the owners and maintainers of a commercial building did not widen that duty. The Appellate Court reversed a judgment upon a plaintiffs verdict because the trial court had charged that the jury must ask whether there was a storm in progress which would have made it impractical to require the owner and its hired maintenance crew to have done something about the condition of the sidewalk, keeping in mind the location and use of the premises, among other factors. (fn17) The Appellate Court found this charge improper because it takes into consideration the status of the defendants as owners and maintainers of a commercial building in determining the duty owed to a plaintiff. (fn18) The Appellate Court held that owners of commercial property have no higher or different duty of care than that imposed on owners of residential property. (fn19) On the other hand, the Appellate Court declined to hold, as requested by the defendants, that the trial court should have granted their motion for directed verdict. The Appellate Court held that there were factual questions as to whether there was one storm or two storms in rapid succession, and whether the plaintiff fell on ice accumulated from an earlier storm. (fn20)

Notice of a defective condition may be unnecessary where the plaintiff falls on pricing stickers in a store. In Fuller v. First National Supermarkets, Inc. (fn21) the court reviewed the complaint (fn22) and the evidence and concluded that the case had been tried on the theory that the defendant had actually created the dangerous condition, specifically, an accumulation of pricing stickers on the floor. The court noted that it was unnecessary for the trial court to charge as to the necessity of notice to the defendant of the dangerous condition of the premises when the evidence showed that that condition was created by its own agent. (fn23) Noting that only employees had access to the pricing stickers, the


court held that the jury could reasonably have inferred that employees had dropped the pricing stickers on the floor and thereby fall. (fn24)

The Appellate Court held in Gambardella v. Kaoud, (fn25) that an allegation that the defendants "caused and/or did allow sand, sticks and debris to accumulate on said walkway, thereby covering and concealing from view the cracked surface thereof"was a sufficient allegation of a positive act by landowners abutting a public sidewalk to form the basis of their liability in negligence or public nuisance.

4. Recreational land use immunity

The Supreme Court granted certification to the 1995 Appellate Court decision in Conway v. Wilton (fn26) regarding application of the recreational land use immunity statute, Section 52557f of the General Statutes. In Conway, the Appellate Court held that this statute not only immunized the town which owned a tennis court from any liability for a claimed defect thereon but also immunized a scholastic athletic association which had chosen the allegedly defective court for a tennis tournament which the association had sponsored among athletes from various schools. The Appellate Court rejected the plaintiffs claim that the association owed a duty to athletes independent of its role as a person in control of the premises. It wrote that "[flo hold that the association owed a supplemental duty of care would effectively circumvent Section 52-557g. That statute explicitly defines an injury on land open to the public for recreational purposes as nonactionable. It provides that 'no duty of care' is owed to persons entering the land for recreational purposes and that the landowner does not'[m]ake any representation that the premises are safe for any purpose.'" (fn27)

The Supreme Court granted certification to address two issues: (1) whether it should reconsider Manning v. Barenz (fn28) which had applied the recreational land use immunity statute to municipalities; and (2) if not, whether the Appellate Court improp


erly affirmed summary judgment when the plaintiff claimed that the association owed a duty independent of its duty as an "owner of land" within the meaning of the recreational land use statute. (fn29)

B. Automobile cases

1. Availability of jury instruction on statute forbidding vehicles from following too closely

In Wrinn v. State, (fn30) the Supreme Court held that the mere occurrence of a rear end accident does not automatically entitle the victim to have the jury instructed on Section 14-240 of the General Statutes which forbids following another vehicle more closely than is reasonable and prudent. The court held that the statute did not apply where the plaintiff had been stopped at a traffic light at the end of an exit ramp when the defendant, who had just exited the interstate onto the ramp, slid and collided with the rear of the plaintiff's vehicle. The court wrote that the word "follow" as used in the statute implied the movement of two vehicles: a leader and a follower. (fn31) While the statute may sometimes apply to a rear-end collision with a stopped vehicle, the plaintiff must first present evidence to show that, prior to the collision, the defendant was following too closely. (fn32) The statute will not apply where the negligence was not in following too closely; rather it...

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