Developments in Tort Law: 1996 Annual Survey

• Pages: 37
• Publication year: 2021

Connecticut Bar Journal Volume 71.

71 CBJ 37. DEVELOPMENTS IN TORT LAW: 1996 ANNUAL SURVEY

DEVELOPMENTS IN TORT LAW: 1996 ANNUAL SURVEY

By DOUGLAS W. HAmmom AND KATmN CALiBEY(fn*)

Legislative changes to Connecticut tort law were less extensive than in recent years, but our appellate courts issued important decisions on diverse subjects including: the remedy for spoliation of evidence; the requirements for proof of willful disclosure of HIV positive status; the liability of purveyors of alcohol to minors; the survival of postdissolution tort claim between former spouses; the notice requirements for a landlord's liability for lead paint; and the standard for proving causation in lost chance claims. This annual survey discusses these and other appellate decisions rendered in tort cases last year.

1. NEGLiGENcE

A. Apportionvwnt

In Cooper v. Delta Chi Housing Cwp. of Connedicut,(fn1) the Appellate Court held that parties immune from liability cannot be made defendants, even for purposes of apportionment only. The court noted that in the same public act that had created apportionment, the legislature amended Section 52102 of the General Statutes to provide that "no person who is immune fTom liability shall be made a party to the controversy."(fn2) Thus, because a claim against the University of Connecticut was barred by the doctrine of sovereign immunity, the university could not be made an apportionment defendant for the purpose of reducing the share of any award which must be paid by the defendant.(fn3)

A Premises Liability

In Maffitcci v. Royal Park Ltd. Partnenhip,(fn4) the Appellate Court reversed a trial court which had granted summary judgment entered against a trespasser who suffered an electrocution injury while removing copper from electrical switchgear at the former Royal Typewriter building. The court held that testimony and circumstantial evidence indicating the prior presence of trespassers removing copper from the switchgear created a genuine issue of fact as to whether the defendants had actual or constructive notice, and thus a duty to warn. (fn5) The court also held that there was a genuine issue of fact as to the adequacy of signs warning "Danger High Voltage." The jury could find that the signs were located on sides of the switchgear other than the side from which the plaintiff approached and that the appearance of the switchgear, with stripped wires and copper bars removed, indicated that there was no electricity flowing.(fn6) The Supreme Court has granted certification.(fn7)

In Suam v. Sordog(fn8) the Appellate Court reversed a trial court's denial of a motion to set aside a verdict in f-avor of a plaintiff who was a police officer who had been shot by a suspcct who had fled into the defendant property owners' unsecured building known to have been frequented by vandals and drug dealers. In violation of the housing code, the building had exterior doors without knobs and locks. The court held that the jury could not reasonably conclude that the absence of locks and knobs created a risk of the type of harm actually suffered by the claimant.(fn9) It was not foreseeable, according to the court, that a felon would flee an arrest on the street by running through the unlocked rear door and concealing himself in an unlocked apartment and that a policeman would pursue him and be shot in the apa=enL'(fn10)

C. Umpire Liability

In Santopietro v. New Haven,(fn11) a spectator sought to recover from baseball umpires for serious injuries suffered when struck in the head by a bat flung by a frustrated batter. The Supreme Court held that umpire liability, if it existS,(fn12) must be predicated on facts sufficient to support the conclusion that the unreasonable actions or failure to act on the part of the umpire led to such a loss of control of the game as to imperil unreasonably the safety of others.(fn13) The court held that the fiLct finder must determine, "not just whether in hindsight the umpire en-ed, but also whether the umpire's error constituted an abuse of his broad discretion.(fn14)

D Res Ipsa Loquitur

In Barretta v. Otis Elevator Co.,(fn15) the Appellate Court reversed a trial court which had failed to charge on the doctrine of res ipsa loquitur in a case in which an escalator was claimed to have stopped suddenly. The Appellate Court held that an escalator does not ordinarily stop sudden!y while people are riding on it unless someone has been negligent. The court rejected the defendant's contention that the charge should not have been given because the doctrine was incorrectly described as a theory upon which the jury's verdict could be based rather than as an application of the general principle that negligence can be proved by circumstantial evidence. Although the court agreed with the defendant's characterization of the doctrine, the Appellate Court held that the requested charge on the doctrine was still adequate.(fn16) The Supreme Court has certified the question of whether the Appellate Court properly concluded that the judgment must be reversed because of a fikilure to charge on the doctrine of res ipsa loquitur. (fn17)

E. Claims Against Health Caye Providers

In Fraser v. United States,(fn18) the Connecticut Supreme Court addressed the duty of a psychotherapist to exercise control over an outpatient to prevent harm to others. The plaintiff was the executrix of the estate of a man who was stabbed to death, apparently without provocation, by a psychiatric outpatient of the West Haven Veterans Administration Medical Center. Throughout his psychiatric therapy, the patient was delusional, believing himself to be involved in secret spy missions and violent confrontations. No acts or threats of violence were documented, although his therapists knew he had carried weapons and had urged him to get rid of them.

The plaintiff brought a federal tort claim, alleging a failure to warn and a failure to control the outpatient. The claim was necessarily brought in the United States District Court, which granted summary judgment in favor of the defendant. On appeal, the Second Circuit Court of Appeals rejected the plaintiff's failure to warn claims, and certified the following question to the Connecticut Supreme Court: "In the circumstances of this case, does a psychother-apist have a duty to control a patient being treated on an outpatient basis in order to prevent harm to third persons?"

The Supreme Court answered in the negative. The Supreme Court based its decision on the factual circumstances determined in the federal courts, specifically, the conclusion by the Court of Appeals that there were no objective indicia of the patient's propensity to cause harm. The District Court had determined that the psychotherapists could not have foreseen that the outpatient would harm anyone or that, if he were to harm anyone, he would harm the plaintiff's decedent or a class including him. (fn19) Accordingly, the Supreme Court confined its discussion to the question of whether a psychotherapist has a duty to exercise control to prevent an outpatient, who was not known to have been dangerous, from inflicting bodily harm on a victim who was neither readily identifiable nor within a foreseeable class of victims, a question which it answered in the negative.(fn20)

Two other cases decided by the Appellate Court illustrated the difference between the evidence required for proof of simple negligence and that required for proof of profes3ional negligence or malpractice. Bourquin v. R Braun Melsungen (fn2l) held that the granting of summary judgment due to the lack of expert testimony on the general negligence claim against the defendant hospital was improper. The Appellate Court stated that plaintiffs negligence claim based upon failing to investigate and failing to observe warnings, unlike traditional medical malpractice claims, "does not present an esoteric or uniquely medical issue requiring expert testimony for its

determinadon."(fn22) The Appellate Court similarly found that expert testimony was not required to establish the causal relationship between the alleged negligence and the decedent's death.(fn23) In Kunst v. Vt'1* (fn24) the Appellate Court held that the trial court had improperly submitted a case to the jury on a theory of simple negligence when the complaint had alleged professional (podiatric) negligence as to which the plaintiffs expert testimony had been precluded

F LEGAL MALPRACTICE

In Lemoine v. McCann, (fn25) the Appellate Court ruled that an attorney appointed as a special assistant public defender is an employee of the state for purposes of sovereign immunity. Accordingly, the attorney was immune from personal liability for injury not caused by wanton, reckless or malicious conduct.

Over the dissent of judge Landau, the Appellate Court upheld the Dial court determination that the complaint did not allege wanton, reckless and malicious conduct.(fn26)

In Novak v. Scaksse,(fn27) the Appellate Court reversed a trial court which had set aside a defendant's verdict in a legal malpractice case. The trial court had concluded that the jury's conclusion was the product of mistake resulting, in part, from the pressure of a "Chip Smith" charge. The Appellate Court noted, however, that the jury, in answer to an interrogatory, found that the defendant owed no individual duty to the plaintiffi, who were two of the general partners in a partnership represented by the lawyer. The court held that the verdict reflected no manifest injustice so plain and palpable as to denote clearly that a mistake was made. It therefore should not have been set aside. The Supreme Court has certified the question.(fn28)

G. Causation

In Brown v. Board of Education,(fn29) the plaintiff claimed that his son had committed suicide as a result of the conduct of his public school principal and teachers, including their failure to address his...