Developments in Tort Law: 1997 Annual Survey

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 72 Pg. 169
Pages169
Connecticut Bar Journal
Volume 72.

72 CBJ 169. Developments in Tort Law: 1997 Annual Survey




169


Developments in Tort Law: 1997 Annual Survey

By Kathy CALIBEY AND Douglas W. Hammond (fn*)


I. Negligence

A. Apportionment

Baxter v. Cardiology Associates of New Haven, PC. (fn1) addressed the standard of proof necessary to support a jury's consideration of apportionment to a settled or released party under Connecticut General Statutes Section 52-572h(n). The Appellate Court held that traditional rules regarding sufficiency of evidence apply and that the issue of a settled person's negligence must not be submitted to the jury without adequate evidence to support a finding of negligence. When the apportionment defendant is a medical provider, evidence of the apportionment defendant's negligence must come from qualified medical experts. The burden of proof with regard to the evidence of an apportionment defendant's negligence rests with the party who brought the apportionment complaint. (fn2) The Appellate Court additionally held that, although the apportionment statute is silent as to the issue of notice, a trial court has discretion to disallow apportionment evidence when the defendant fails to give timely notice to either the court or the plaintiff that apportionment is being sought. (fn3)

In Paul v. McPhee Electrical Contractors, (fn4) the Appellate Court held that a defendant may implead apportionment defendants under Connecticut General Statutes Section 52-102b only on the basis of negligence pursuant to Connecticut General Statutes Section 52-572h.

The Appellate Court in Stowe v. McHugh (fn5) reiterated its holding that in a medical malpractice action the negligence of an apportionment defendant must be proven by qualified expert testimony.




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B. Duty of Care

In Pion v. Southem New England Telephone Co., (fn6) the Appellate Court addressed the issue of whether the defendant telephone company owed a duty of care to a person operating a vehicle which accidentally veered off the road and hit defendant's telephone pole located some distance away on private wooded property. The court discussed the foresee ability component of duty and once again restated that "[f]oresee ability of the mere possibility of such an accident does not create a duty." (fn7) The Appellate Court held that the trial court was correct in concluding, as a matter of law, that the defendant could not reasonably foresee the possibility of an accident like plaintiff's. (fn8) Moreover, any possibility that such an accident would occur was too remote to create a duty to motorists. (fn9)

Jaworski v. Kieman (fn1O) involved an injury arising out of a coed adult recreational soccer game. A jury verdict for the plaintiff was rendered on the theory of negligence. The jury found in favor of the defendant on the issue of reckless misconduct. The Supreme Court held that proof of negligence is insufficient to create liability within the context of a team contact sport. Rather, based upon policy considerations, the court adopted a standard of care which places upon participants in a team contact sport "a legal duty to refrain from reckless or intentional conduct." (fn11)

In Zamstein v. Marvasti, (fn12) the Supreme Court held that a psychiatrist, hired to evaluate children in the context of an


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abuse claim, does not owe a duty of care, arising out of the performance of the evaluation, to the parent suspected of child abuse.

C. Causation

Edwards v. Tardif (fn13) addressed the issue of whether, in the context of a medical malpractice action, a decedent's suicide broke the chain of causation as a matter of law. The Supreme Court held that if a patient's suicide was a foreseeable risk stemming from a physician's negligent treatment, then liability will attach: "[A] physician may be liable for a patient's suicide when the physician knew or reasonably should have known of the risk of suicide and the physician's failure to render adequate care and treatment proximately causes the patient's suicide." (fn14)

In Wagner v. Clark Equipment CO., (fn15) a case of first impression, the Supreme Court examined the issue of whether two or more forces may combine to create a superseding cause. The court held that it does "not matter whether the intervening force is one act or a combination of acts, so long as it entirely breaks the causal connection between the defendant's conduct and the plaintiffs injuries so as to be the sole proximate cause of those injuries." (fn16)

D. Res Ipsa Loquitur

The Appellate Court in Pineau v. Home Depot, Inc., (fn17) held that the doctrine of res ipsa loquitur applies only when a plaintiff is relying solely upon circumstantial evidence to prove negligence. The doctrine does not apply when a plaintiff alleges and introduces into evidence specific acts of negligence by the defendant. (fn18)




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In Barretta v. Otis Elevator Co., (fn19) the Supreme Court similarly held that a res ipsa loquitur charge was not warranted when the plaintiffs own evidence precluded the inference of the defendant's negligence. (fn20) At trial, plaintiff submitted expert testimony that the escalator was correctly designed and installed and that he had no evidence or reason to believe that the defendant had been negligent in inspecting or maintaining the escalator. (fn21) The court held that "[w1hen, as in the present case, evidence on the question of causation is presented at trial, and all such evidence affirmatively indicates the accident in question would, in fact, have happened in the absence of anyone's negligence, an instruction on the doctrine of res ipsa loquitur is inappropriate." (fn22)

E. Respondent Superior

Mullen v. Horto (fn23) involved the issue of whether the sexual misconduct of a priest during counseling sessions could give rise to vicarious liability on the part of the institutional defendants or whether such conduct constituted a complete abandonment of church business. The Appellate Court found that summary judgment was improperly granted because a trier of fact, under the circumstances presented, could reasonably find that "consensual sexual relations between two adults arising out of emotional, spiritual, church-sponsored counseling sessions represented a negligent and misguided effort at pastoral counseling . . . " (fn24)




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F. Unavoidable Accident

The Appellate Court, in Barme v. DeFillippo, (fn25) reaffirmed that a trial court's refusal to instruct on unavoidable accident will not be considered error.

G. Premises Liability

The Appellate Court in Claveloux v. Downtown Racket Club Associate (fn26) examined and reversed a trial court's ruling to exclude evidence of prior slipping accidents which occurred upon the defendant's racquetball, courts. The trial court excluded the evidence because the prior accidents were not substantially similar, having occurred on another court, on a different day, during a warm-up period, and having resulted from a claim of a foreign substance on the floor. (fn27) The Appellate Court recognized that evidence of prior accidents can be admitted to prove either the existence of a particular physical condition or to prove notice of a dangerous character. The requirement that prior accidents be substantially similar is lessened when evidence is offered to prove notice, and the requirement does not foreclose evidence simply because the conditions vary. When a plaintiff submits prior accident evidence to prove notice, the test for admissibility is whether the evidence would have called the defendant's attention to the dangerous situation that resulted in the plaintiff's injuries. (fn28) The Supreme Court has granted certification on this issue.




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Tuite v. Stop & Shop Cas. (fn29) reiterates the longstanding rule that a plaintiff need not prove actual or constructive knowledge of a dangerous condition on the part of a defendant when it is asserted that the defendant's employees created the condition. (fn30) When a dangerous condition is created by the defendant's employees, the defendant is considered to have actual notice of the condition. The defendant's creation of a dangerous condition may be proved by circumstantial evidence, such as proof that the defendant's employees failed to take necessary measures to maintain the premises in a reasonably safe condition. (fn31)

II. EMPLOYER LIABILITY

A. Intentional Torts

The Supreme Court revisited Suarez v. Dickmont Plastics Corp., (fn32) after the case was tried subsequent to an earlier remand. (fn33) The court's first decision held that a plaintiff employee could bring an action against an employer, sufficient to overcome the workers' compensation bar, if it is proven that the employer actually intended to injure the plaintiff, or that the employer intentionally created a dangerous condition that made the plaintffs injuries substantially certain to occur. (fn34) Upon remand, the jury found for the plaintiff. (fn35) In Suam H, the court decided several issues. It held that an employer cannot be liable in common-law tort for injury to an employee under the intentional injury theory based on the apparent authority of a fellow employee. (fn36) Additionally, the court discussed the evidence needed to prevail under the actual intent standard. It stated: "Substantial certainty centers on whether the employer believed the injury was substantially certain to follow' the employer's acts or conduct, but when substantial certainty is no longer in the case, the inten




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tional . . . conduct alleged must have been designed to cause the injury that resulted." (fn37)




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B. Negligent Infliction Of Emotional Distress

The Supreme Court in Parsons v. United Technologies, Corp. (fn38) briefly addressed the requirements for asserting a claim of negligent infliction of emotional distress...

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